FUTURES ACCOUNT INFORMATION Goldman, Sachs & Co. 200 West Street FORM AND AGREEMENT New York, New York 10282
We are pleased that you have decided to open an account with Goldman, Sachs & Co. (“GSCo.”).
In addition to this Futures Account Information Form and Agreement, you will receive Disclosure Statements and Other Notices, containing various risk disclosure statements that you must review before you may begin trading. Included in the Futures and Options on Futures Account Agreement contained herein is an acknowledgment confirming that you have received, read and understood certain of those disclosure statements. The Futures and Options on Futures Account Agreement and any other documents applicable to your account must be executed and returned to us before you may begin trading.
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT
IN ACCORDANCE WITH GOVERNMENT REGULATIONS, FINANCIAL INSTITUTIONS ARE REQUIRED TO OBTAIN, VERIFY, AND RECORD INFORMATION THAT IDENTIFIES EACH PERSON OR ENTITY THAT OPENS AN ACCOUNT.
WHAT THIS MEANS FOR YOU: WHEN YOU OPEN AN ACCOUNT, WE WILL ASK FOR YOUR NAME, ADDRESS, IDENTIFICATION NUMBER AND OTHER INFORMATION THAT WILL ALLOW US TO IDENTIFY YOU, THE CUSTOMER. WE MAY ALSO ASK TO SEE GOVERNMENT-ISSUED IDENTIFYING DOCUMENTS.
Please complete and sign the applicable forms that follow.
In addition, please provide the following:
1. Documentation showing/establishing the existence of entity, e.g., articles of incorporation, government-issued business license, partnership agreement, trust agreement, offering memorandum, prospectus, statutes, etc.;
2. A prospectus or offering circular (if applicable), trust agreement, investment guidelines, board certified minutes/resolutions, or other document establishing your legal capacity to engage in futures transactions;
3. Signature authority of individual(s) signing the enclosed documents;
4. Government-issued identification number;
5. Evidence of commodity pool operator and/or commodity trading advisor registration or exemption (if applicable);
6. Internal Revenue Service tax form, W-8 or W-9, as applicable;
7. Current financial information;
8. Investment management agreement with investment guidelines (if applicable); and
9. Accounts for individuals require a clear photocopy of an unexpired government-issued identification showing nationality or residence and bearing a photograph.
Please note that GSCo.’s acceptance of your account is subject to review and will be evidenced solely by GSCo. providing you with an activated account.
If you have any questions concerning these documents, please call your GSCo. Representative directly. Thank you for promptly completing and returning these forms.
Sincerely,
GOLDMAN, SACHS & CO.
Book I 2.2016 + FAE NEW ACCOUNT INFORMATION FORM
To be completed by ALL Customers: General Information: Name of Customer
Phone number
Contact Person’s Name and
E-mail address
Nature of Business (if Entity)
Government-Issued ID
Number or Tax ID Number
Government-Issued ID Type
Legal Address: No P.O. boxes; if customer is an entity, then business address; if customer is an individual, then residence.
Address
City
State/Province
Postal Code
Country
Mailing Address: Where you wish to receive communications containing customer information, if different from Legal Address. Address
City
State/Province
Postal Code
Country
Website Access and Electronic Delivery: Confirmations and statements are delivered electronically. The CFTC requires the Customer to receive confirms and statements. Accordingly, in addition to providing a valid e-mail address below, Customer must consent to electronic delivery by executing Appendix V and an Electronic Access Agreement. Customer E-mail Address
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Duplicate Confirms/Statements: Please fill in the following if you wish to have copies of your confirms and statements sent to an additional party. Name
Address
City
State/Province
Postal Code
Country
Phone number
E-mail address
Legal Structure: (Please check one) ☐ S Corp ☐ C Corp ☐ Partnership ☐ Limited Liability Company ☐ Pension Plan ☐ Trust ☐ Individual ☐ Joint with Rights of Survivorship ☐ Tenants in Common* ☐ Other
*Additional information for accounts held as Tenants in Common: If you have checked the box for a joint account held as Tenants in Common, please provide each account holder’s name and % ownership:
Account Holder Name Percentage Ownership
%
%
%
☐ Yes ☐ No Are you a member of NFA? If Yes, please list NFA
number
If Customer is an individual1, please complete the following: Source of Wealth
Date of Birth
Occupation or Line of Business
Are you an employee of an exchange, an ☐ Yes ☐ No FCM or a futures introducing broker? If Yes, please provide consent of employer.
1 If Tenants in Common or a Joint Account with Rights of Survivorship, each individual must complete this and the following section.
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If Customer is (1) an individual OR (2) not an individual and not an Eligible Contract Participant, as defined in the Commodity Exchange Act and CFTC regulations, please complete the following: Estimated Annual Income
Estimated Net Worth
Prior Investment Experience (in years)
Prior Futures Trading Experience (in years)
☐ Yes ☐ No
Are you a floor trader? If Yes, please list exchanges
☐ Yes ☐ No
Are you an exchange member? If Yes, please list exchanges
Are you an affiliated person of an FCM or ☐ Yes ☐ No futures introducing broker? If Yes, please provide consent of FCM or futures introducing broker.
ACKNOWLEDGMENTS AND AUTHORIZATIONS Please check the boxes and sign below to confirm that Customer has received, understands and, if applicable, consents to the following:
□ Risk Disclosure Statement (CFTC Rule 1.55(b))
□ Options Disclosure Statement (CFTC Rule 33.7(b))
□ Disclosure Statement for Non-Cash Margin (CFTC Rule 190.10(c))
□ Authorization to Transfer Funds - allows GSCo. to transfer funds between a regulated commodity account and any other account maintained with GSCo. (including Customer’s securities account(s)). (See Section 3(f) of the Agreement)
□ Consent to Cross Transactions - authorizes GSCo. to take the other side of Customer’s transaction subject to its being executed at prevailing priced in accordance with the Commodity Exchange Act (See the Cross Trade Consent in the Disclosure Statements and Other Notices (Book II))
□ Consent to Electronic Delivery of Statements - In addition to other applicable agreements and appendices set forth herein, Customer acknowledges that it has read and agrees to abide by the Consent to Electronic Delivery (Appendix V) and hereby consents to receive confirmations, account statements, notices, communications and other information from GSCo. electronically.
Date:
Name of Customer:
By/Signature: Name: Title:
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To be completed by ALL Customers:
Senior Political Figure: Is any beneficial owner or principal of this entity or their immediate family member a senior political figure, defined as a current or former senior official in the executive, legislative, administrative, military or judicial branches of a government (whether elected or not), a senior official of a political party, a senior executive of a government-owned enterprise, corporation, business or entity formed by or for the benefit of such individual?
☐ Yes ☐ No If Yes, please explain:
Please select the entity type for which you are opening an account and complete the sections indicated Account Type Principals/ Sections Beneficial Owner(s) to Complete Senior Officers (CEO/President, CFO/Treasurer) and owners of 5% or ☐ Bank (other than Central Banks)** A more of entity ☐ Bank (Central or Monetary Authority) * Head of Central Bank/Monetary Authority A Broker/Dealers, Futures Commission Merchants, Senior Corporate Officers (CEO/President, CFO/Treasurer), General ☐ A Investment Advisors* Partners and owners of 5% or more of entity Charitable, Religious or Non-Profit Organization Chairman of the Board and Senior Officers (CEO/President, ☐ A (regardless of legal structure) CFO/Treasurer) Foundation, Endowment (regardless of legal Senior Officers (CEO/President, CFO/Treasurer), all Trustees, ☐ A structure) Grantor/Settlor Government Agency, Sovereign Agency, ☐ Head of Agency A Municipality, Public Authority* ☐ Hedge Funds (regardless of legal structure) Hedge Fund Manager, Officers/Directors and General Partner A Copy of current ☐ Individual Self gov’t-issued ID Chairman of the Board, Senior Officers (CEO/President, ☐ Insurance Company (Private)* B CFO/Treasurer), General Partners and owners of 5% of more of entity Chairman of the Board, Senior Officers (CEO/President, ☐ Insurance Company (Public)* A CFO/Treasurer), General Partners Mutual Fund (regulated domestic & offshore ☐ mutual funds, collective investment schemes, Officers and Trading Advisor A bank investment trusts)* ☐ Pension Plan (ERISA) Trustee, Plan/Corporate Sponsor A ☐ Pension Plan (non-ERISA)* Trustee, Plan/Corporate Sponsor A Private Corporation (other than private investment Chairman of the Board, Senior Officers (CEO/President, ☐ B vehicle/personal holding company) CFO/Treasurer), General Partners and owners of 5% of more of entity Private Investment Vehicles/Personal Holding Full Names of Grantor/Settlor & All beneficial owners; their current line ☐ B Companies (regardless of legal structure) of business; Source of Funds for the Vehicle Public Corporation* Chairman of the Board, Senior Officers (CEO/President, ☐ A Ticker Sym: CFO/Treasurer), General Partners ☐ Supra-National Organization/Financial Institution Primary Contact A University, Hospital, HMOs (regardless of legal Chairman of the Board, Senior Officers (CEO/President, ☐ A structure) * CFO/Treasurer), General Partners and owners of 5% of more of entity ☐ OTHER***:
* Principal information is not required if the Customer is domiciled in a FATF-member country (http://www.fatf-gafi.org); however, we may ask for additional information/documentation on a case by case basis. Principal information is required regardless of domicile for the following customer types: Individual account for Minors, Private Investment Vehicles/Personal Holding Companies and Trusts. ** Non-U.S. banks must complete a “foreign bank certification”; if applicable, please contact your GSCo. salesperson. *** Please contact your GSCo. salesperson prior to completing.
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SECTION A: To be completed by Principals Principal(s), e.g., Chairman of the Board, Senior Officers (CEO/President, CFO/Treasurer), General Partners, owners of 5% or more of entity, etc.:
1. First Name Last Name Middle Initial
Country of Domicile Job Title
2. First Name Last Name Middle Initial
Country of Domicile Job Title
3. First Name Last Name Middle Initial
Country of Domicile Job Title
SECTION B: To be completed by Beneficial Owners (only to be completed by Insurance Companies (Private), Private Corporations and Private Investment Vehicles) Beneficial Owner(s), e.g., beneficiaries, grantor/settlor, etc.:
1. First Name Last Name Middle Initial
Home Address: Street 1 Street 2
Address: City State/Province Postal Code
Country of Domicile Source of Wealth Line of Business
2. First Name Last Name Middle Initial
Home Address: Street 1 Street 2
Address: City State/Province Postal Code
Country of Domicile Source of Wealth Line of Business
3. First Name Last Name Middle Initial
Home Address: Street 1 Street 2
Address: City State/Province Postal Code
Country of Domicile Source of Wealth Line of Business If necessary, please make additional copies of this page.
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BEARER SHARE ENTITY FORM
This Bearer Share Entity Form must be completed by any new customer that is a private investment vehicle (PIV), personal holding company (PHC), private corporation, Limited Liability Corporation (LLC), limited partnership, charity or foundation.
A “Bearer Share Entity” is a corporation, which, pursuant to the laws of the jurisdiction in which it was organized, is permitted to issue shares in bearer form, meaning that the ownership interest in the corporate entity is not registered with the relevant regional authority, but rather resides with the person who physically possesses the share certificates.
Please answer the following questions:
1. Is the customer a Bearer Share Entity? ☐ Yes ☐ No 2. Is any entity that wholly or partially owns the customer a Bearer Share Entity? ☐ Yes ☐ No
If the answer is “Yes”, please indicate all entities in the customer’s ownership structure that are Bearer Share Entities below.
If you answered “Yes” to Question 1 or 2, prior to opening an account, for each Bearer Share Entity in the ownership structure, you must provide the following:
Organizational documents (e.g., articles of incorporation and/or memorandum of association) and; The Share Register and/or Share Certificates
If you answered “No” to Questions 1 and 2 and the customer was organized in a Bearer Share Jurisdiction**, prior to opening an account, you must provide the following:
Customer’s organizational documents (e.g., articles of incorporation and/or memorandum of association) and if the customer issues shares; The Share Register and/or Share Certificates
* Please note that Goldman Sachs may require additional documentation for Bearer Share Entities, depending upon a review of the information provided.
** Bearer Share Jurisdictions include: Antigua, Aruba, Austria, Bahamas, Belize, BVI, Cayman Islands, Cyprus, Liberia, Liechtenstein, Marshall Islands, Mauritius, Netherlands Antilles, Panama, Paraguay, Seychelles, Switzerland, United States (Nevada and Wyoming only), Uruguay, Vanuatu and Western Samoa.
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CTI CODE FORM
Prior to being granted trading privileges on any U.S. futures exchange, you must complete the following questionnaire. The questions address exchange membership requirements which enable Goldman, Sachs & Co. (“GSCo.”) to comply with exchange regulations.
It is a regulatory requirement in the U.S. to include an accurate customer type indicator code (“CTI Code”)2 with respect to futures transactions.
Customer Name: ______
1) CTI Codes are designated in accordance with exchange membership. Please indicate if you are a member on any U.S. exchange:
____ Member (continue to question 2)
____ Non Member
2) To determine the correct CTI code, please indicate the following3:
Exchange Membership Is your affiliate If affiliate is a Provide your Please indicate Status a member on member, market maker ID if you are I = Individual the exchange? please indicate for the exchanges receiving Member (Y/N) the name of on which you are a preferential fees E = Entity the affiliate market maker CME CBOT COMEX NYMEX KCBT CFE ICE US MGEX NFX
Note that it is your responsibility to notify GSCo. promptly if any of the information provided changes. If you have any questions please contact your GSCo. Representative directly.
2 Each futures exchange has its own set of CTI Codes definitions, which generally include the following four categories: CTI 1 - Transactions initiated and executed by an individual member for his own account, for an account he controls, or for an account in which he has ownership or financial interest. CTI 2 - Transactions executed for the proprietary account of a clearing member or non-clearing member firm. CTI 3 - Transactions where an individual member or authorized trader executes for the personal account of another individual member, for an account the other individual member controls or for an account in which the other individual member has ownership or financial interest. CTI 4 - Any transaction not meeting the definition of CTI 1, 2 or 3 (these should be non-member customer transactions). 3 Shaded areas are not applicable.
- 8 - Book I 2.2016 + FAE FUTURES ACCOUNT INFORMATION Goldman, Sachs & Co. 200 West Street FORM AND AGREEMENT New York, New York 10282
FUTURES AND OPTIONS ON FUTURES ACCOUNT AGREEMENT
In consideration of Goldman, Sachs & Co. (“GSCo.”) acting as a futures commission merchant (“FCM”) and GSCo. and/or its Affiliates (collectively, “Goldman”) executing, clearing, and/or carrying futures contracts (“Futures Contracts”), options on Futures Contracts (“Option Contracts”), or over-the-counter derivative products cleared through any derivatives clearing organization or other organized clearing house (“OTC Contracts”) on behalf of the undersigned customer (“Customer”), Customer consents and agrees to the terms and conditions set forth in this agreement (the “Agreement”). Futures Contracts, Option Contracts, and OTC Contracts are referred to collectively in this Agreement as “Contracts”. The term “Affiliates” shall mean all entities, present and future, which control, are controlled by or are under common control with GSCo.
1. Applicable Law. Customer’s compliance with any law or regulation governing or affecting Customer’s trading hereunder. Each Customer account carried by GSCo. in connection with Customer’s Contracts (each an (b) Advice and Positions. Any advice provided “Account”) and each Contract shall be subject to by Goldman with respect to any Account or Contract (i) the Commodity Exchange Act, as amended (the is incidental to its business as an FCM and such advice “CEA”), and all rules and interpretations of the shall not serve as a primary basis for any decision by Commodity Futures Trading Commission (the or on behalf of Customer in respect of any Contract or “CFTC”) and the National Futures Association (the Account and Goldman is not a fiduciary with respect “NFA”); (ii) the constitution, by-laws, rules, to Customer. Goldman makes no representation as to interpretations and customs of any applicable the reliability, accuracy or completeness of such advice exchange or clearing organization (each of which is or any information on which it is based. Goldman referred to as an “Exchange”); and (iii) any other laws, Parties may take or hold positions in, or advise other rules, or orders applicable to Goldman or to customers with respect to, Contracts that are the Customer’s trading of Contracts (collectively, subject of advice furnished by Goldman to Customer, “Applicable Law”). Goldman and its respective and such positions or advice may be inconsistent with partners, managing directors, officers, directors, any advice to Customer. employees or agents (collectively, “Goldman Parties”) shall not be liable as a result of any action taken by (c) Conclusiveness of Reports. Time is of the such Goldman Parties, or any clearing brokers or floor essence in correcting trade errors. Oral trade fills shall brokers, to comply with Applicable Law. be conclusive and binding on Customer unless Customer notifies GSCo. of any objection at the time 2. General Agreements. such fill is given. Written confirmations and monthly statements shall be conclusive and binding on Customer acknowledges and agrees that: Customer unless Customer notifies GSCo. of any objection before the opening of trading on the business (a) Goldman’s Responsibility. Goldman, as agent, day on which GSCo. sent such written communication is responsible solely for the execution, clearing and/or to Customer, provided that, for the avoidance of doubt, carrying of Contracts in each Account in accordance GSCo. has sent such written communication to with the terms of this Agreement. Customer and Customer before the opening of trading on such day. Customer’s advisor (“Advisor”), if any, are the sole Customer or Advisor shall carefully review any other parties responsible for all investment, trading, and communication from GSCo. and shall notify GSCo. of order routing decisions for the Accounts and for any error immediately in the case of an oral compliance with any applicable restrictions on such communication and promptly after receipt in the case trading. Customer is responsible for evaluating and of a written communication. understanding the risks associated with transactions on each Exchange on which Customer has elected to (d) Reliance upon Instructions. Goldman shall be trade. Goldman is not acting as a fiduciary or advisor entitled to rely upon any instruction, notice or with respect to Customer or any Contract or Account communication of any officer, director, employee, or and Goldman shall have no responsibility for agent (including Customer’s Advisor, if any) of compliance with any law or regulation governing the Customer having actual or apparent authority to act on conduct of any such fiduciary or advisor or for behalf of Customer and Customer shall be bound thereby.
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(e) Financial and Other Information. Customer or delay by any Exchange with respect to any shall provide to Goldman such financial information Contracts executed and/or cleared for Customer’s regarding Customer as Goldman may from time to Accounts. In addition, Customer agrees that time reasonably request. In addition, Customer shall Goldman Parties shall have no liability for, and provide other information, including but not limited to agrees to indemnify and hold Goldman Parties information regarding account ownership and control, harmless from, all Losses that result from: (a) that Goldman may require to be in compliance with Customer’s or its agents’ misrepresentation, act or Applicable Law. Customer shall notify Goldman omission or alleged misrepresentation, act or promptly of any material adverse changes to the omission, (b) Goldman Parties following Customer’s financial condition of Customer, regardless of whether or its agents’ directions or failing to follow Customer has previously furnished financial Customer’s or its agents’ unlawful or unreasonable information to Goldman. directions, (c) any activities or services of Goldman in connection with the Account (including, without If Customer is a commingled investment vehicle, limitation, any technology services, reporting, it is understood that Customer shall provide to trading, research or capital introduction services), or Goldman a Net Asset Value Statement for the last (d) the failure by any person not controlled by calendar day of each month within fifteen (15) days Goldman to perform any obligations to Customer. from such date, and a verbal estimate within one (1) Nothing in this Section 2(g) shall in any manner business day of request by Goldman. “Net Asset restrict Goldman’s rights pursuant to Section 8 hereof. Value” means Total Assets minus Total Liabilities. In no event shall Goldman be liable for consequential, “Total Assets” means all assets of Customer which, in incidental or special damages. accordance with generally accepted accounting principles, would be classified as assets upon the 3. Margin and Other Obligations. balance sheet of Customer prepared as of such date. “Total Liabilities” means all liabilities of Customer (a) Customer agrees to deposit and to maintain which, in accordance with generally accepted initial and variation margin and to make any premium accounting principles, would be classified as liabilities payments with respect to each Contract, in such form upon the balance sheet of Customer prepared as of and in such amounts as may be required from time to such date. time by Applicable Law or by Goldman in its sole discretion. Customer acknowledges and agrees that (f) Floor Brokers and Clearing Brokers. Goldman has no obligation to establish uniform Goldman, for and on behalf of Customer, is authorized margin, commission or fee requirements and that in its sole discretion to select floor brokers and, on margin requirements imposed by Goldman may Exchanges where Goldman is not a clearing member, exceed those of the applicable Exchange. unaffiliated clearing brokers, which will act as brokers and agents in connection with transactions in Contracts (b) Customer agrees to pay (i) all brokerage for the Accounts. charges and commissions relating to each Contract executed, cleared and/or carried by Goldman on (g) Limitation of Liability. Goldman Parties shall Customer’s behalf or for any Account maintained by not be liable for any expenses, losses, damages, Customer, in each case in such manner and at such liabilities, demands, charges, claims, penalties, fines rates that GSCo. may charge from time to time; (ii) all and taxes of any kind or nature (including legal regulatory, Exchange and other self-regulatory fees, expenses and attorneys’ fees) (“Losses”) by or with fines, penalties and charges, and any taxes, incurred or respect to any matters pertaining to any Account, imposed with respect to each Contract or Account; except to the extent that such Losses are actual (iii) the amount of any trading loss, debit balance or Losses and are determined by a court of competent deficiency in any Account; (iv) interest on any debit jurisdiction or an arbitration panel in a final non- balances or deficiencies in any Account and on any appealable judgment or order to have resulted solely monies advanced to Customer; (v) any sums due from Goldman’s gross negligence or willful arising from delivery obligations; and (vi) any other misconduct. Goldman Parties shall not be liable for amounts owed by Customer to Goldman with respect any Losses caused directly or indirectly by any events to the Accounts or any transactions therein. beyond Goldman’s control, including, without limitation, any (i) governmental, judicial, Exchange or (c) Customer acknowledges and agrees that, if other self-regulatory organization action or order, Customer enters into a transaction in any Contract that (ii) labor disputes, riots, sabotage, insurrection, fires, is denominated in a currency (the “Contract flood, storm, explosions, earthquakes, electrical Currency”) other than the currency in which initial power failures, acts of God, war, both declared and margin is deposited, any profit or loss on such undeclared, or acts of terrorism, (iii) suspension or Contract arising from changes in exchange rates or the termination of trading, (iv) breakdown or failure of inconvertibility of any currency into another shall be transmission or communication facilities, or (v) failure for Customer’s Accounts and risk. - 10 - Book I 2.2016 + FAE
(d) Customer acknowledges and agrees that (g) Customer hereby agrees to compensate GSCo. may (but shall not be obligated to) accept from Goldman Parties for any and all (i) Losses incurred by Customer margin deposits in the form of cash or Goldman Parties in connection with the execution securities denominated in a currency other than the and/or clearing of Contracts for Customer’s Accounts Contract Currency (the “Base Currency”). In that hereunder, provided that such Losses are not due to the event, GSCo. shall determine Customer’s margin gross negligence or willful misconduct of Goldman requirements in the Base Currency on any day in a Parties and (ii) Losses incurred by Goldman Parties as commercially reasonable manner based on current a result, directly or indirectly, of Customer’s failure to exchange rates between the Base Currency and the comply with any provision of, or to perform any Contract Currency and may substitute its property for obligation under, this Agreement. Customer’s property in order to satisfy customer margin obligations in the Contract Currency at the 4. Exercise and Delivery. relevant Exchange. Furthermore, Customer shall pay Goldman’s fees as in effect from time to time for (a) Customer agrees to give Goldman notice, not Goldman’s deposit of margin in the Contract Currency later than the time specified by Goldman and, in any with the applicable Exchange. Without limitation of event, not later than the time period specified by the the foregoing, if conversions between the Contract applicable Exchange, before the close of trading in the Currency and the Base Currency cannot reasonably be Contract in question, if Customer intends to make or effected due to exchange controls, government take delivery under any Futures Contract or to exercise restriction, market conditions or other factors, (i) any Option Contract. Customer shall furnish Goldman Goldman shall have no obligation to accept the Base with sufficient funds to take delivery pursuant to, or to Currency in satisfaction of Customer’s margin exercise and provide initial margin for, any such requirements and any loss resulting from Customer’s Contract and/or deliver to Goldman any property inability to satisfy such margin obligations in the required to be delivered by Customer under any such Contract Currency shall be solely for Customer’s Contract at such time and in such manner as may be Accounts and risk and (ii) in the event that Customer is required by Goldman. If Customer fails to perform its entitled to the return or receipt of margin in connection obligations under this paragraph, Goldman may, but is with transactions in any Contract, Goldman’s sole not required to, take any action it deems, in its sole obligation shall be to deliver to Customer the quantity discretion, necessary for its protection, including, of the Contract Currency to which Customer is without limitation, liquidating the relevant positions. entitled, at such time and in such manner as such If Customer makes or takes delivery under any delivery may reasonably be made. Contract, Customer represents that it has knowledge of the applicable delivery process, is capable of making (e) Customer further acknowledges and agrees or taking such delivery, and has the infrastructure that Goldman shall have the right, in accordance with necessary to make or take delivery. Applicable Law, to transfer or pledge margin deposited by Customer to any Exchange or to any (b) Certain Option Contracts sold by Customer clearing broker in order to satisfy obligations are subject to exercise at any time. Exercise notices incurred by Goldman on behalf of Customer, and that received by Goldman from the applicable Exchange any such transfer or pledge shall not diminish with respect to any Option Contract sold by Goldman’s rights and Customer’s obligations under Goldman’s customers may be allocated among such this Agreement. Goldman’s rights and Customer’s customers (including Customer) pursuant to a random obligations under this Agreement also shall not be allocation procedure, or such other procedures diminished if Goldman pledges or transfers its own mandated by the applicable Exchange, and Customer or other property to an Exchange or clearing broker shall be bound by any allocation made to it pursuant to in substitution for Customer’s property. such procedure. Such notices may be allocated to Customer after the close of trading on the day on (f) Without limiting or modifying the general which such notices have been allocated to Goldman by provisions of this Agreement, Customer hereby the applicable Exchange. Goldman shall use specifically authorizes Goldman to transfer from reasonable efforts to contact Customer promptly upon and/or to Customer’s Account from and/or to any its allocation of an exercise notice to Customer. other account Customer may maintain with Goldman Customer understands and agrees that Goldman may such amount of excess funds as in Goldman’s change its allocation method at any time, upon notice judgment may be necessary at any time to avoid a to Customer. margin call or to reduce the debit balance in said other account, or to satisfy any other obligations of (c) If Customer fails to comply with any of the Customer to Goldman. GSCo. will notify Customer foregoing obligations in this Section 4, Goldman may of any transfer of funds made pursuant to this take any action or may take no action, as it deems authorization within a reasonable time after each appropriate in its sole discretion, with respect to any transfer. Option Contract (and, without limiting the foregoing, - 11 - Book I 2.2016 + FAE shall have no obligation to exercise any Option clause (A) is held or credited will constitute a Contract purchased by Customer), and Goldman “securities account” within the meaning of Article 8 Parties shall have no liability for any action that it as to which GSCo. will be acting as “securities takes or fails to take with respect to any such Option intermediary” within the meaning of Article 8. To Contract. the extent any commodity contract (within the meaning of the UCC) is carried in any Account, such 5. Position Limits. Account will constitute a “commodity account” within the meaning of the UCC as to which GSCo. is Goldman shall have the right, whenever in its sole the “commodity intermediary” within the meaning of discretion it deems it appropriate, to limit the size and the UCC. New York is the “securities intermediary’s number of open Contracts (net or gross) that Goldman jurisdiction” and the “commodity intermediary’s will at any time execute, clear and/or carry for jurisdiction” for purposes of the UCC. Goldman Customer, to require Customer to reduce open shall have all the rights and remedies of a secured positions carried with Goldman, and to refuse party under the UCC with respect to any of the acceptance of orders to establish new positions. foregoing property (whether or not the UCC is Customer shall comply with all position limit rules otherwise applicable in the relevant jurisdiction). imposed by Applicable Law and shall not violate such limits whether acting alone or in concert with others. (b) The security interest created by Customer If Customer is required to file any position report with hereunder (i) shall be a continuing security interest any regulatory or self-regulatory authority, Customer and shall not be satisfied by any intermediate shall promptly file and provide Goldman with copies performance of Customer’s obligations, and (ii) shall of any such report. be in addition to and shall not be affected by any other security interest now or subsequently held by 6. Lien. Goldman for all or any of Customer’s obligations.
(a) Customer agrees that (i) all Accounts, (ii) all (c) Customer shall promptly execute such Contracts, (iii) all funds, securities, credit balances, documents and take such other action as Goldman and other property of Customer (owned either shall reasonably request in order to perfect individually or jointly with others or in which Goldman’s rights with respect to any Collateral. Customer has any interest) that may from time to Customer hereby irrevocably appoints Goldman as time be held by or on behalf of Goldman, or which Customer’s attorney-in-fact, with full authority in the are, or may become, due to Customer or to Goldman place and stead of Customer, under a power coupled for any of Customer’s Accounts (including amounts with an interest, and in the name of Customer or from any Exchange or clearing broker in respect of otherwise, from time to time in Goldman’s discretion, any Contracts), and (iv) all proceeds in the foregoing to act on Customer’s behalf to sign, seal, execute and and all rights Customer may have against Goldman deliver all documents, and do all acts, as may be ((i) through (iv) collectively, “Collateral”) are hereby required, or as Goldman shall determine to be pledged to Goldman and shall be subject to a general advisable, to perfect the security interest created lien, first priority security interest and right of set-off under this Agreement in, provide for any Affiliate to for the discharge of all Customer’s obligations to have control of, or realize upon any rights of any Goldman. Customer further agrees that Goldman Affiliate in, any or all of the Collateral. To perfect its may, in exercising its rights hereunder, deduct any security interest in all or a portion of the Collateral, amounts from any of Customer’s Accounts and apply Goldman may file UCC financing statements and or transfer any of Customer’s securities and other amendments thereto naming Customer as the debtor property interchangeably between any of Customer’s in the appropriate filing offices in the United States accounts, each of which unreservedly guarantees all and may need to make comparable filings or provide obligations of Customer to Goldman. Customer other evidence of Goldman’s security interest in acknowledges that GSCo. and each of its Affiliates foreign jurisdictions, if applicable. Customer agrees act as agents for each other in respect of the rights to notify Goldman within thirty (30) days following subject to the lien as described above. the occurrence of any change in its legal name, jurisdiction of formation, form of organization, place Customer and Goldman acknowledge and agree of residence (if Customer is an individual), or chief that (A) all Collateral other than the Accounts executive office to enable Goldman to maintain its (including cash Collateral, but excluding “commodity perfected status in the Collateral. Except as otherwise contracts” within the meaning of the Uniform agreed by Goldman, neither all nor any part of the Commercial Code in effect in the State of New York Collateral shall be subject to, nor shall Customer (the “UCC”)) held in or credited to any Account will create or purport to create thereover, any pledge, be treated as “financial assets” within the meaning of hypothecation, assignment or any other form of Article 8 of the UCC (“Article 8”) and (B) each security interest. Account in or to which any Collateral referred to in - 12 - Book I 2.2016 + FAE
(d) Goldman shall be under no obligation to (v) Employees of FCMs, Self-Regulatory return to Customer the same property deposited with Organizations or the CFTC. If Customer is an Goldman or received by Goldman for Customer’s individual, Customer is not a partner, officer, director, Accounts, but may return other property of like or employee or owner of more than ten percent of the equivalent kind or amount. equity interest of any FCM, any introducing broker or any self-regulatory organization, or an employee of the 7. Customer Representations. CFTC, except as otherwise disclosed to GSCo. in writing. (a) Customer represents and warrants as of the date hereof and on the date of each transaction (vi) Cash Transactions. Customer is aware executed hereunder that: that CFTC regulations require Customer to create, retain and produce upon the request of the CFTC, the (i) Lawful Agreement. The person United States Department of Justice and the authorized to execute this Agreement on behalf of applicable Exchange, documentation of cash Customer (including, without limitation, with respect transactions underlying exchanges of futures for cash to any employee benefit plan, any trustee, or, if more commodities or exchanges of futures in connection than one, each trustee of Customer), is duly authorized with cash commodity transactions. and empowered to execute and deliver this Agreement and to effect purchases and sales of Contracts through (vii) Recording of Telephone Goldman and Customer has determined that trading in Conversations. Customer understands that Goldman Contracts is appropriate for Customer. Such may record telephone conversations and Customer transactions and this Agreement do not and will not acknowledges, authorizes and consents to the violate any Applicable Law, any judgment, order or recording of conversations by means of electronic agreement to which Customer or its property is subject telephone recording equipment, whether such or by which it or its property is bound or any conversations occur between officers, directors, documents or instruments governing the investment partners, employees or other agents of Goldman and and trading activities of Customer. This Agreement is Customer. Customer understands that such a valid and binding agreement of Customer, conversations may be recorded without further notice enforceable against Customer in accordance with its or disclosure, without the use of an automatic tone terms. Customer has made and will make any warning device, and without assuming responsibility disclosures regarding its trading of Contracts which are to make or retain such recordings. required under Applicable Law. (viii) Customer Eligibility. In the event that (ii) Compliance with Applicable Law. at any time Customer must meet specific criteria or Customer and each transaction contemplated have a specified status (e.g., Eligible Contract hereunder is and will be in compliance with all Participant, etc.) in order to trade in a certain product, Applicable Law, including, without limitation, anti- Customer represents and warrants that it meets such money laundering and registration requirements of the criteria and/or specified status (as applicable). CEA and NFA. (ix) Give-Ups. Customer will not execute (iii) No Plan Assets. Unless Customer has Contracts through other brokers to be given up to executed Appendix VII attached, Customer is not (A) Goldman for clearance or carrying in any Account an employee benefit plan that is subject to the prior to having a separate written agreement in place fiduciary responsibility part of the Employee with Goldman. Retirement Income Security Act of 1974, as amended (“ERISA”), (B) a plan that is subject to Section 4975 (b) Customer agrees to promptly notify GSCo. in of the Internal Revenue Code of 1986 (the “Code”), writing if any representation or warranty made by (C) any other plan that is subject to any law, rule or Customer ceases to be accurate and complete in any regulation substantially similar to Section 406 of material respect. ERISA or Section 4975 of the Code or (D) an entity the underlying assets of which are deemed to 8. Customer Default. constitute the assets of a plan within the meaning of (A), (B), or (C) (each of (A), (B), (C) or (D), a “Plan (a) If (i) Customer fails to deposit or maintain Asset Customer”). required margin, fails to pay required premiums or fails to make any other payments required hereunder (iv) Financial Information. Any financial or or otherwise in respect of any Contract; (ii) Customer other information provided to Goldman by Customer defaults on any obligations to Goldman in respect of in connection with this Agreement or the opening or any transaction or agreement; (iii) any representation maintenance of Customer’s Accounts is and will be made by Customer or Advisor, if any, is not or ceases accurate and complete in every material respect. - 13 - Book I 2.2016 + FAE to be accurate and complete in any material respect; remaining in each Account after any such action is (iv) a case in bankruptcy is commenced or a taken, together with interest thereon and all costs proceeding under any insolvency or other law for the relating to liquidation and collection (including protection of creditors or for the appointment of a attorneys’ fees). receiver, trustee or similar officer is filed by or against Customer or Customer makes or proposes to make any 9. Communications. arrangement for the benefit of its creditors, or Customer or any of its property is subject to any (a) Goldman may communicate with Customer agreement, order or judgment providing for by e-mail from time to time. By executing this Customer’s dissolution, liquidation or reorganization, Agreement, Customer agrees to receive written or for the appointment of a receiver, trustee or similar confirmations, monthly statements and other officer of Customer or such property; (v) any warrant communications containing customer information by or order of attachment is issued against any Account or e-mail. If Customer does not wish to receive written a judgment is levied against any Account; confirmations, monthly statements and other (vi) Goldman, after notifying Customer and offering communications by e-mail, Customer must notify Customer the opportunity to provide adequate GSCo. in writing. Customer acknowledges that e-mail assurances acceptable to Goldman within a reasonable messages are not secure and may contain computer period of time under the circumstances, reasonably viruses or other defects, may not be accurately considers it necessary for its protection; (vii) Customer replicated on other systems, or may be intercepted, (if an individual) dies or becomes incompetent or interfered with, or deleted without the knowledge of Customer (if an entity) is dissolved or in any other way the sender or the intended recipient. Goldman makes terminated; (viii) proceedings for the revocation or no warranties in relation to these matters. Goldman suspension of any registration required in connection reserves the right to intercept, monitor and retain e- with Customer’s activities have been instituted or are mail messages to and from its systems as permitted pending or threatened by any governmental agency or by Applicable Law. Although GSCo. has offered self-regulatory organization; or (ix) Customer defaults Customer a secure alternative for sending on any other obligation to Goldman hereunder, (each confidential client information, by requesting to have an “Event of Default”), then Goldman shall have the such information sent in insecure e-mails, Customer right, without limitation, to (A) close out any or all of accepts these risks. Customer agrees that Goldman Customer’s open Contracts; (B) cancel any or all of Parties shall have no liability and Customer shall Customer’s outstanding orders; (C) treat any or all of indemnify Goldman Parties for any Losses resulting Customer’s obligations due Goldman as immediately from the use of insecure e-mails. due and payable; (D) net and set off any obligations of Goldman to Customer against any obligations of (b) Any report, instruction or other Customer to Goldman; (E) sell any Collateral and/or communication transmitted pursuant to this Agreement net and set off and apply any Collateral or the proceeds shall be transmitted to Customer as indicated on the of the sale of any Collateral to satisfy any obligations enclosed New Account Information Form or on the of Customer to Goldman; (F) borrow, buy, or sell any records of Goldman, or to Goldman at 200 West options, securities, Contracts or other property for any Street, 3rd Floor, New York, New York 10282, Account; and/or (G) terminate any or all of Goldman’s Attention: Futures Services / Clearing Services obligations for future performance to Customer. Department, by facsimile at (646) 835-3248 or by Customer appoints Goldman as Customer’s attorney- telephone at (212) 902-7520, (212) 357-2266, or (312) in-fact to sign, complete, and deliver any and all 362-3034 or at such other address or number as either documents necessary or desirable to carry out (A) party hereto notifies each other party hereto in writing. through (G) above. (c) Communications mailed, electronically (b) So long as Goldman’s rights or position transmitted or made available via Goldman’s internet would not be jeopardized thereby, Goldman shall or intranet website, file transfer protocol or other make a good faith effort to notify Customer of its electronic means, whether now in existence or in the intention to take any of the actions specified in (A) future devised, or otherwise sent to Customer at the through (G) of Section 8(a) above before taking any address or other Customer locators (which may such action, provided that Goldman shall not be include, without limitation, e-mail or Internet deemed to have breached any obligation to Customer Protocol (IP) addresses depending on the delivery if no such notice is given. Any sale or purchase method) specified in GSCo.’s records shall, until hereunder may be made in any manner determined by GSCo. has received notice in writing of a different Goldman to be commercially reasonable. It is address or locator and has updated its records, be understood that, in all cases, a prior demand or notice deemed to have been delivered by Goldman when shall not be considered a waiver of Goldman’s right to sent and Customer waives all claims resulting from take any action provided for herein and that Customer failure to receive such communications. shall be liable for the payment of any deficiency - 14 - Book I 2.2016 + FAE
10. Severability. remedy may be inferred from any failure by Goldman or Customer to exercise any right or remedy under this If any provision of this Agreement is or at any Agreement. time becomes inconsistent with or invalid under any present or future Applicable Law, such inconsistent or 14. Successors; Binding Effect. invalid provision shall be deemed to be superseded or modified to conform to such Applicable Law, but in all (a) This Agreement shall inure to the benefit of, other respects this Agreement shall continue in full and be binding upon, each of the parties and their force and effect. respective successors and assigns.
11. Entire Agreement. (b) This Agreement and the obligations of Customer hereunder may not be assigned or delegated This Agreement, any and all Appendices and/or by Customer without the prior written consent of Supplements executed in connection with this GSCo., and any purported assignment or delegation Agreement, the Cleared Derivatives Transactions without such consent shall be void. GSCo. may not Addendum (if applicable), and the accompanying assign its rights nor delegate its obligations under this Disclosure Statements and Other Notices constitute the Agreement, in whole or part, without the prior written entire agreement between Customer and GSCo. with consent of Customer, and any purported assignment or respect to the subject matter hereof and supersede any delegation without such consent shall be void, except prior agreements between the parties with respect to for an assignment and delegation of all of GSCo.’s such subject matter. rights and obligations hereunder to any Affiliate or successor. Upon any such assignment and delegation 12. Termination. of obligations, Goldman shall be relieved of and fully discharged from all obligations hereunder, whether This Agreement shall continue in full force until such obligations arose before or after such assignment written notice of termination is given in accordance and delegation. with Section 9 of this Agreement by Customer or GSCo. Termination of this Agreement shall not affect 15. Governing Law. any transaction entered into before receipt of notice of such termination and shall not relieve any party hereto This Agreement, each Contract entered into of any obligations incurred hereunder. Customer, hereunder, and all matters arising in connection with upon giving or receiving notice of termination, shall this Agreement shall be governed by, and construed promptly take all action necessary either to close out and enforced in accordance with the laws of the State all open positions in any Account or to transfer all such of New York (without giving effect to its conflicts of positions to another FCM. Upon satisfaction by law principles). Customer of all obligations to Goldman arising hereunder (including payment obligations with respect 16. Consent to Jurisdiction; Waiver of Jury Trial. to the transfer of Contracts to another FCM), GSCo. shall, if there are any remaining open Contracts or Unless Customer agrees to submit all disputes other property in any Account, transfer to the FCM arising out of or relating to this Agreement or any specified by Customer all Contracts, cash, securities transaction in connection herewith to arbitration and other property, then held for any Account, pursuant to Appendix II, Customer submits to the whereupon this Agreement shall terminate. If exclusive jurisdiction of the courts of the State of New Customer shall fail to provide such transfer York located in the County of New York and of the instructions, Goldman may take any and all actions it Federal courts in the Southern District of New York deems, in its sole discretion, necessary to close out all with respect to any proceeding arising out of or open positions in any Account. relating to this Agreement or any transaction in connection herewith, and consents to the service of 13. Amendment or Waiver. process by the mailing to Customer of copies thereof by certified mail to the address of Customer as it Except as otherwise provided herein, all waivers appears on the books and records of GSCo., such and modifications must be in writing signed by the service to be effective ten days after mailing. party against whom it is to be enforced, provided, Customer hereby waives irrevocably (i) any objection however, that GSCo. may amend this Agreement in to the jurisdiction of any such court which it might accordance with any change in Applicable Law. otherwise be entitled to assert in any proceeding GSCo. will notify Customer of any such amendment. arising out of or relating to this Agreement or any The rights and remedies of Goldman and Customer transaction in connection herewith; and (ii) any under this Agreement are cumulative and no waiver or defense of sovereign immunity or other immunity modification of this Agreement or of any such right or
- 15 - Book I 2.2016 + FAE from suit or enforcement, whether before or after Customer acknowledges that Goldman has no judgment. responsibility for the preparation and accuracy of such offering documents. CUSTOMER HEREBY WAIVES A TRIAL BY JURY IN ANY ACTION ARISING OUT OF 18. Captions. OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION IN CONNECTION All captions used herein are for convenience THEREWITH. only, are not a part of this Agreement, and are not to be used in construing or interpreting any aspect of 17. Use of Name. this Agreement.
Customer agrees not to use Goldman’s name for 19. Counterparts. any purpose without Goldman’s prior written consent, including, but not limited to, in any This Agreement may be executed in advertisement, publication or offering material; counterparts, each of which shall be deemed an provided, however, that GSCo. consents to original, but all of which shall constitute one and the Customer’s stating in its offering documents that same instrument. GSCo. is its FCM so long as such statement is factually accurate at the time the statement is made.
Acknowledgements. Customer hereby expressly acknowledges and agrees that Customer has received, read and understood, and has retained a copy of, the “Disclosure Statements and Other Notices”, which include the disclosures required by CFTC Rules 1.55, 30.6, 33.7 and 190.10(c), and the related bankruptcy election included in the attached hedging designation.
Date:
Name of Customer:
By/Signature: Name: Title:
- 16 - Book I 2.2016 + FAE FUTURES ACCOUNT INFORMATION Goldman, Sachs & Co. 200 West Street FORM AND AGREEMENT New York, New York 10282
APPENDIX I
HEDGING ACCOUNT DESIGNATION (To Be Completed by Customer Using Futures for Hedging Purposes)
This Hedging Account Designation relates to the Futures and Options on Futures Account Agreement (the “Agreement”) entered into between GSCo. and the customer identified below (“Customer”) and all capitalized terms used but not defined in this Appendix I shall have the respective meanings assigned to such terms in the Agreement.
Each order by Customer to buy or sell any Contracts in the Account, unless otherwise designated in writing to GSCo. in advance, will be a hedging, arbitrage, spreading or risk management transaction not subject to speculative position limit rules and speculative margin requirements under applicable exchange rules.
CFTC regulations require GSCo. to provide each hedge customer the opportunity to issue instructions to liquidate or transfer to another futures commission merchant all hedging positions in the unlikely event that GSCo. becomes bankrupt. Please check the appropriate box to indicate if Customer prefers liquidation ☐, or transfer ☐, of all Customer’s hedging positions in the event of GSCo.’s bankruptcy. Customer acknowledges that no assurance can be given that any hedging positions will be transferred even if Customer has given such instruction. If neither box is checked, Customer will be deemed to have chosen to have all Customer’s hedging positions liquidated.
Date:
Name of Customer:
By/Signature: Name: Title:
- 17 - Book I 2.2016 + FAE
APPENDIX II
ARBITRATION (To Be Completed by Customer Consenting to Arbitration for Dispute Resolution)
If Customer consents to arbitration for dispute resolution, Customer agrees that the following terms shall be applicable to and shall constitute a part of the Futures and Options on Futures Account Agreement (the “Agreement”) to which this Appendix II is attached, and all capitalized terms used but not defined in this Appendix II shall have the respective meanings assigned to such terms in the Agreement.
Customer and Goldman agree that any and all disputes arising out of the Agreement shall be settled by arbitration. If such a dispute arises, Customer shall have the opportunity to elect a qualified forum for conducting such proceeding from a list provided by GSCo., which list shall include: (a) the contract market, if available, upon which the transaction giving rise to the dispute was executed or could have been executed; (b) the NFA; and (c) at least one other organization that will provide Customer with the opportunity to select the location of the arbitration proceeding from among several major cities in diverse geographic regions and that will provide Customer with the choice of a panel or other decision maker composed of at least one or more persons, of which at least a majority are not members or associated with a member of a contract market or employee thereof, and which are not otherwise associated with a contract market (a “Mixed Panel”). Forty-five (45) days after receipt by Customer of such list, Goldman may select a forum from such list. Goldman agrees to pay any incremental fees that may be assessed by a qualified forum for the provision of a Mixed Panel, unless the arbitrators determine that Customer has acted in bad faith in initiating or conducting the proceeding.
The following is a CFTC-mandated disclosure:
THREE FORUMS EXIST FOR THE RESOLUTION OF COMMODITY DISPUTES: CIVIL COURT LITIGATION, REPARATIONS AT THE CFTC AND ARBITRATION CONDUCTED BY A SELF- REGULATORY OR OTHER PRIVATE ORGANIZATION. THE CFTC RECOGNIZES THAT THE OPPORTUNITY TO SETTLE DISPUTES BY ARBITRATION MAY IN SOME CASES PROVIDE MANY BENEFITS TO CUSTOMERS, INCLUDING THE ABILITY TO OBTAIN AN EXPEDITIOUS AND FINAL RESOLUTION OF DISPUTES WITHOUT INCURRING SUBSTANTIAL COSTS. THE CFTC REQUIRES, HOWEVER, THAT EACH CUSTOMER INDIVIDUALLY EXAMINE THE RELATIVE MERITS OF ARBITRATION AND THAT YOUR CONSENT TO THIS ARBITRATION AGREEMENT BE VOLUNTARY.
BY SIGNING THIS ARBITRATION AGREEMENT, YOU: (1) MAY BE WAIVING YOUR RIGHT TO SUE IN A COURT OF LAW; AND (2) ARE AGREEING TO BE BOUND BY ARBITRATION OF ANY CLAIMS OR COUNTERCLAIMS WHICH YOU OR GOLDMAN MAY SUBMIT TO ARBITRATION UNDER THIS ARBITRATION AGREEMENT. YOU ARE NOT, HOWEVER, WAIVING YOUR RIGHT TO ELECT INSTEAD TO PETITION THE CFTC TO INSTITUTE REPARATIONS PROCEEDINGS UNDER SECTION 14 OF THE COMMODITY EXCHANGE ACT WITH RESPECT TO ANY DISPUTE WHICH MAY BE ARBITRATED PURSUANT TO THIS ARBITRATION AGREEMENT. IN THE EVENT A DISPUTE ARISES, YOU WILL BE NOTIFIED IF GOLDMAN INTENDS TO SUBMIT THE DISPUTE TO ARBITRATION. IF YOU BELIEVE A VIOLATION OF THE COMMODITY EXCHANGE ACT IS INVOLVED AND YOU PREFER TO REQUEST A SECTION 14 “REPARATIONS” PROCEEDING BEFORE THE CFTC, YOU WILL HAVE 45 DAYS FROM THE DATE OF SUCH NOTICE IN WHICH TO MAKE THAT ELECTION.
YOU NEED NOT SIGN THIS ARBITRATION AGREEMENT TO OPEN AN ACCOUNT WITH GSCO. SEE 17 CFR 166.5.
Date:
Name of Customer:
By/Signature: Name: Title:
- 18 - Book I 2.2016 + FAE
APPENDIX III
ADVISOR AUTHORIZATION (To Be Completed by Customer)
This trading authorization and certain additional representations (“Authorization”) relates to the Futures and Options on Futures Account Agreement (the “Agreement”) entered into between GSCo. and the customer identified below (“Customer”) and all capitalized terms used but not defined in this Appendix III shall have the respective meanings assigned to such terms in the Agreement.
Customer hereby authorizes the advisor identified below (“Advisor”) as its agent and attorney-in-fact to purchase, sell and otherwise deal in Contracts and effect transactions on Contracts and instruct GSCo. with respect to all things necessary in connection with the Account on behalf of Customer, all in accordance with the terms and conditions as set forth in the Agreement, for Customer’s risk and in Customer’s name. Goldman is authorized and instructed to follow the instructions of the Advisor in every respect concerning the Account, as set forth in the Agreement and to act or refrain from acting in accordance with such instructions to the same extent and with the same force and effect as if such instructions were given by Customer directly. Without limiting the generality of the foregoing, the Advisor is authorized to access and use services, facilities, and information provided electronically and, on behalf of Customer, to agree to the terms regarding such use and access.
Customer hereby ratifies and confirms any and all transactions with Goldman heretofore or hereafter made by Advisor for the Accounts.
Customer acknowledges that: (i) at all times at which any transaction under the Agreement remains outstanding, Customer has given Advisor the authority to exercise any of Customer’s rights over its Accounts at Customer’s risk, and Goldman is authorized to act, or omit to act, upon any communication or instruction of Advisor as though given by Customer; (ii) any communication or notice given to Advisor by Goldman or received from Advisor by GSCo. shall be deemed to have been given to, or received from, Customer, as the case may be, and any instruction or action of Advisor shall be deemed to constitute the instruction or action of Customer; and (iii) it has received and read a copy of Advisor’s current disclosure document or a written statement from Advisor that Advisor is exempt from the requirement to provide such a disclosure document.
This Authorization (a) shall be continuing and shall remain in full force and effect until GSCo.’s receipt of written notice of Customer’s revocation thereof (provided, however, that such revocation shall not be effective with respect to open positions or outstanding orders submitted by the Advisor but not yet executed); (b) shall inure to the benefit of Goldman and its successors; (c) shall be binding upon Customer, its successors and legal representatives; and (d) is in addition to (and in no way limits or restricts) any rights which Goldman may have under the Agreement or any other agreement or agreements between Customer and Goldman.
Name of Advisor:
Date:
Name of Customer:
By/Signature: Name: Title:
- 19 - Book I 2.2016 + FAE
APPENDIX IV
ADVISOR REPRESENTATIONS (To Be Completed by Customer’s Advisor)
This Appendix IV supplements the Futures and Options on Futures Account Agreement (the “Agreement”) entered into between GSCo. and the customer identified below (“Customer”). All capitalized terms used but not defined in this Appendix IV shall have the respective meanings assigned to such terms in the Agreement. In the event any provision in this Appendix IV conflicts or is inconsistent with any provision of the Agreement, the provisions of this Appendix IV shall control for matters or services related to this Appendix IV.
Customer’s advisor identified below (“Advisor”) represents and warrants that it (I) will enter into futures contracts, options on futures contracts, and over-the-counter derivative products cleared through any derivatives clearing organization or other organized clearing house (“Contracts”) on Customer’s behalf and instruct GSCo. in connection with such Contracts or Customer’s accounts carrying such Contracts (“Accounts”), if and only to the extent that it is authorized and empowered to do so on behalf of Customer and (II) is either (i) a commodity trading advisor registered as such pursuant to the CEA and a member of the NFA and it either has furnished Customer with a copy of its commodity trading advisor disclosure document, which disclosure document fully complies with the requirements of CFTC Regulation 4.31 or it is exempt from being required to deliver such a disclosure document to Customer pursuant to CFTC Regulation 4.7 or (ii) not required to be registered as a commodity trading advisor.
Advisor acknowledges and agrees that any advice provided by Goldman with respect to any Account or Contract is incidental to its business as a futures commission merchant and such advice shall not serve as a primary basis for any decision on behalf of Customer in respect of any Contract or Account relating to this Authorization or the Agreement, and Goldman is neither a fiduciary nor an advisor with respect to Customer.
Advisor represents and warrants, in its individual and fiduciary capacity, which representations and warranties are deemed to be repeated on each date on which the Agreement is in effect and on each date on which any transaction contemplated by the Agreement is outstanding, that either: (A) the Customer is not (i) an employee benefit plan that is subject to the fiduciary responsibility part of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan that is subject to Section 4975 of the Internal Revenue Code of 1986 (the “Code”), (iii) any other plan that is subject to any law, rule or regulation substantially similar to Section 406 of ERISA or Section 4975 of the Code or (iv) an entity the underlying assets of which are deemed to constitute the assets of a plan within the meaning of (i), (ii), or (iii) (each of (i), (ii), (iii) or (iv), a “Plan Asset Customer”); or (B) (1) it is fully familiar with the requirements of ERISA, the Code and any applicable state or other laws as they relate to Customer and has determined that the purchase and sale of Contracts by Customer is and will be in full compliance with the requirements (to the extent applicable) of Section 404 of ERISA, including without limitation the “prudence” and “diversification” requirements of Section 404(a)(1)(B) and (C) of ERISA (or any similar state or other laws), and other applicable laws; (2) the Agreement and each transaction entered into under the Agreement (and each transaction contemplated thereby) will not result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code (or, in the case of any governmental Plan, any similar provision) by reason of Department of Labor Prohibited Transaction Class Exemption 84-14, as amended (“PTCE 84-14”), Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code, or another available exemption; (3) Advisor shall enter into any transaction under the Agreement on Customer’s behalf on the basis of determining that Customer (and each employee benefit plan which constitutes the assets of Customer) will receive no less and pay no more than “adequate consideration” (within the meaning of Section 408(b)(17)(B) of ERISA); and (4) Advisor is an “investment manager” as defined in Section 3(38) of ERISA and is a “qualified professional asset manager” within the meaning of PTCE 84-14, with respect to Customer and each employee benefit plan the assets of which constitute the assets of Customer.
In addition, if any of Customer’s Contracts will be governed by the terms of a Cleared Derivatives Transactions Addendum (the “Addendum”) then, with respect to such Contracts, Advisor represents and warrants, in its individual and fiduciary capacity, which representations and warranties are deemed to be repeated on each date on which the Agreement or the Addendum is in effect and on each date on which any transaction contemplated by the Agreement or the Addendum is outstanding, that either: (A) the Customer is not a Plan Asset Customer; or (B) (1) GSCo. is not a “fiduciary” with respect to Customer within the meaning of Section 3(21) of ERISA or any other Applicable Law (including, without limitation, by virtue of GSCo.’s reservation or exercise of any rights GSCo. may have in connection with the Agreement, the Addendum or any transaction contemplated by the Agreement or the Addendum); (2) no amounts paid directly or indirectly by Customer to GSCo. are compensation for any investment advice rendered by GSCo. to Customer; (3) GSCo. has no authority or responsibility to render investment advice with respect to any moneys or other property of Customer; and (4) the execution and delivery of - 20 - Book I 2.2016 + FAE
the Agreement and the Addendum and the performance of each transaction (including each Transaction as defined in Section 7 of the Addendum) contemplated by the Agreement and the Addendum do not and will not constitute a (A) non-exempt “prohibited transaction” within the meaning of Section 406 of ERISA or Section 4975 of the Code by reason of the application of PTCE 84-14 or Prohibited Transaction Class Exemption 96-23, as amended, or (B) “prohibited transaction” within the meaning of any law, rule or regulation substantially similar to Section 406 of ERISA or Section 4975 of the Code for which an exemption is not available.
Name of Customer:
Date:
Name of Advisor:
By/Signature: Name: Title:
- 21 - Book I 2.2016 + FAE
APPENDIX V
CONSENT TO ELECTRONIC DELIVERY (To Be Completed by Customer Consenting to Electronic Delivery of Statements)
This Consent to Electronic Delivery (the “Supplement”) is part of the Futures and Options on Futures Account Agreement (the “Agreement”) entered into between GSCo. and the customer identified below (“Customer”). Unless otherwise defined in this Supplement, defined terms have the same meaning as set forth in the Agreement. In the event any provision in this Supplement conflicts or is inconsistent with any provision of the Agreement, the provisions of this Supplement shall control for matters or services related to this Supplement. This Supplement sets forth certain additional terms and conditions under which Goldman will deliver Account Communications (defined below) electronically, via e-mail, file protocol transfer, an online posting on Goldman’s website, CD-Rom or any other similar method when such delivery is available (collectively, “Electronic Services”).
1. Customer hereby consents to receiving all Account Communications from Goldman electronically. For this purpose, Account Communications includes, but is not limited to, disclosure documents, account statements, confirmations, margin and maintenance calls, privacy notices, disclosures, regulatory communications and other information, notices and documents (including amendments to the Agreement and this Supplement) delivered or provided to Customer by Goldman, by the issuers of the securities in which Customer invests and by other parties in connection with Customer’s Account. Account Communications may be provided via Electronic Services. Furthermore, Customer authorizes Goldman to deliver Account Communications to Customer by sending Customer a notice, which may be in the form of an e-mail containing a hyperlink or other instructions, that directs Customer to a website that contains Account Communications which can be read and printed. Customer agrees that the sending of such notice by Goldman will constitute good and effective delivery of the Account Communications to Customer, regardless of whether Customer actually accesses the website containing the Account Communications. Customer’s consent extends to all Account Communications, however, not all Account Communications may be available for delivery via Electronic Services at this time. Customer will be notified in advance when new categories of Account Communications are available for delivery via Electronic Services, at which time Customer may stop receiving paper versions of those Account Communications. Customer acknowledges that Customer may incur expenses (such as online service provider charges) associated with Customer’s use of the Electronic Services to it and agrees that Customer will be solely responsible for all such expenses. In addition, Customer acknowledges and agrees that:
(a) Customer’s consent is effective immediately and will remain in effect unless and until either Customer or GSCo. revokes it. Customer may revoke this consent to delivery via Electronic Services at any time by giving GSCo. written notice of such revocation. Goldman may, but is not required to send Customer paper copies of any Account Communications that it is entitled to deliver to Customer via Electronic Services. Furthermore, at Customer’s request, Goldman will send paper copies of any Account Communications that the law requires Goldman to provide. Customer may request paper copies of Account Communications by contacting GSCo. Customer agrees, however, that if Customer (or Customer’s agent, if applicable) revokes or suspends its consent or requests paper copies of Account Communications, Goldman may restrict or terminate Customer’s access to the Electronic Services or eliminate product features of Customer’s Account. Customer agrees, however, that neither Customer’s revocation of consent, request for paper copies, nor Goldman’s delivery of a paper copy will imply that the previous delivery via Electronic Services of the Account Communications did not constitute good and effective delivery.
(b) Customer will notify GSCo. immediately in writing of any change in Customer’s e-mail address, IP address, facsimile number or any other electronic delivery address agreed between Customer and Goldman. Customer may provide notice of a change in its electronic delivery address by giving written notice to GSCo. Until GSCo. has received and had a reasonable time to act on any notice of a change, GSCo. may continue to send Account Communications to Customer’s previous e-mail address, IP address, facsimile number or other electronic address, and any such Account Communications will be deemed to have been delivered to Customer, whether or not Customer has actually received it.
(c) If Customer (or Customer’s agent, if applicable) is deemed to have revoked its consent to delivery via Electronic Services, Goldman may restrict or terminate Customer’s access to the Electronic Services or eliminate product features of Customer’s Account.
(d) Customer agrees that the primary method Goldman will use to deliver Account Communications to Customer will be to post the information on Goldman’s or another secure website and, to the extent required by law, to send Customer a notice directing Customer to the website from which the information can be read and printed.
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Customer understands that Customer may be deemed to have received certain Account Communications (such as Account Communications that do not contain personal financial information) when they are posted to a publicly available website. Goldman reserves the right, however, to post Account Communications on the applicable website without providing notice to Customer, to send Account Communications to Customer at Customer’s electronic address of record, via Electronic Services. Customer agrees to check Goldman’s website regularly, as Customer may have no other way to know Account Communications have been delivered. Notwithstanding Customer’s consent to delivery via Electronic Services, Customer will continue to receive paper copies of Account Communications that are not available via Electronic Services. Customer agrees that all Account Communications provided to Customer in any of the ways described in this Supplement will constitute good and effective delivery of the Account Communications when sent or posted by Goldman, regardless of whether Customer actually or timely receives or accesses the Account Communications.
(e) The Account Communications and other information delivered via Electronic Services may be formatted in Adobe Acrobat’s portable document format (“PDF”), hypertext mark-up language (“HTML”) or other file formats Goldman deems appropriate. In order to view or print documents provided in PDF, Customer will have to obtain the Adobe Acrobat Reader, which is available free of charge at Adobe’s website (located at www.adobe.com) and install it on Customer’s computer. If Goldman changes to a format other than HTML or PDF it will provide Customer with reasonable advance notice, a statement of any new hardware and software requirements for accessing and retaining the information, and access to appropriate software and technical assistance if necessary. Customer is responsible for having any necessary hardware, software or other technology to access the Electronic Services and any information sent electronically, including a printer or other device to download and save any information that Customer may wish to retain.
2. Goldman will take measures that it believes appropriate to protect the confidentiality of information that it transmits to Customer over the Internet. Customer acknowledges, however, that the Internet is not a secure network and that communications transmitted over the Internet may be accessed by unauthorized or unintended third parties. Customer further acknowledges that Goldman may be unable to assist with problems that result from difficulties that Customer may encounter while logging on to or accessing the Electronic Services.
Customer hereby consents to electronic delivery of disclosure documents, account statements, confirmations, notices, communications, and other information from Goldman electronically when electronic delivery is available. Customer agrees that it has read and agrees to the Supplement, which has important information regarding electronic delivery of information.
Date:
Name of Customer:
By/Signature: Name: Title:
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APPENDIX VI
REGISTERED INVESTMENT COMPANY REPRESENTATIONS (To Be Completed if Customer is an Investment Company Registered under the Investment Company Act of 1940)
This Appendix VI contains additional terms to the Futures and Options on Futures Account Agreement (the “Agreement”) entered into between GSCo. and the customer identified below (“Customer”) to the extent Customer is an Investment Company registered under the Investment Company Act of 1940, as amended (the “1940 Act”). All capitalized terms used but not defined in this Appendix VI shall have the respective meanings assigned to such terms in the Agreement. In the event any provision in this Appendix VI conflicts or is inconsistent with any provision of the Agreement, the provisions of this Appendix VI shall control for matters or services related to this Appendix VI.
1. GSCo. represents that it is registered as an FCM under the CEA.
2. GSCo. and Customer agree that (a) GSCo. shall hold initial margin deposited by Customer in compliance with the requirements of section 4d(2) and, if applicable, 4d(f)(2)(A) of the CEA and the rules thereunder or, if applicable, the requirements of rule 30.7 of the CFTC under the CEA; (b) GSCo., as appropriate to Customer’s transactions in Contracts and in accordance with the CEA and the rules and regulations thereunder, may place and maintain initial margin deposited by Customer with another FCM, a clearing organization as defined in rule 1.3(d) under the CEA (including a clearing organization for a foreign board of trade), a bank, as defined in section 2(a)(5) of the 1940 Act, a banking institution or trust company that is incorporated or organized under the laws of a country other than the United States and that is regulated as such by the country’s government or an agency thereof or a member of a foreign board of trade, and shall obtain an acknowledgment, as required under rules 1.20(a) or 30.7(c) under the CEA, as applicable, that such margin is held on behalf of GSCo.’s customers in accordance with the provisions of the CEA; and (c) GSCo. shall promptly furnish copies of or extracts from its records or such other information pertaining to Customer’s assets as the Securities and Exchange Commission may request.
Date:
Name of Customer:
By/Signature: Name: Title:
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APPENDIX VII
CERTAIN PROVISIONS RELATED TO EMPLOYEE BENEFIT PLANS (To Be Completed by Plan Asset Customer (as Defined in Section 7(a)(iii) of the Agreement)) This Appendix VII contains additional terms to the Futures and Options on Futures Account Agreement (the “Agreement”) entered into between GSCo. and the customer identified below (“Customer”) to the extent Customer is a Plan Asset Customer (as defined in Section 7(a)(iii) of the Agreement). All capitalized terms used but not defined in this Appendix VII shall have the respective meanings assigned to such terms in the Agreement. In the event any provision in this Appendix VII conflicts or is inconsistent with any provision of the Agreement, the provisions of this Appendix VII shall control for matters or services related to this Appendix VII. Customer (and the fiduciary acting on Customer’s behalf, in its individual and fiduciary capacities) represents and warrants, that (1) it is fully familiar with the requirements of ERISA, the Code and any applicable state or other laws as they relate to Customer and has determined that the purchase and sale of Contracts by Customer is and will be in full compliance with the requirements (to the extent applicable) of Section 404 of ERISA, including without limitation the “prudence” and “diversification” requirements of Section 404(a)(1)(B) and (C) of ERISA (or any similar state or other laws), and other applicable laws; (2) the Agreement and each transaction entered into hereunder (and each transaction contemplated thereby) will not result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code (or, in the case of any governmental plan, any similar provision) by reason of Prohibited Transaction Class Exemption 84-14, as amended (“PTCE 84-14”), Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code, or another available exemption; (3) Customer shall enter into any transaction hereunder on the basis of determining that Customer (and each employee benefit plan which constitutes the assets of Customer) will receive no less and pay no more than “adequate consideration” (within the meaning of Section 408(b)(17)(B) of ERISA); (4) the fiduciary acting on Customer’s behalf is an “investment manager” as defined in Section 3(38) of ERISA and is a “qualified professional asset manager” within the meaning of PTCE 84-14, with respect to Customer and each employee benefit plan the assets of which constitute the assets of Customer; (5) the fiduciary acting on Customer’s behalf is either (i) a commodity trading advisor registered as such pursuant to the CEA and a member of the NFA and it either has furnished Customer with a copy of its commodity trading advisor disclosure document, which disclosure document fully complies with the requirements of CFTC Regulation 4.31 or it is exempt from being required to deliver such a disclosure document to Customer pursuant to CFTC Regulation 4.7 or (ii) not required to be registered as a commodity trading advisor; (6) the fiduciary acting on Customer’s behalf shall cause Customer to perform all of the agreements on Customer’s part to be performed under the Agreement, including without limitation, its obligation to pay margin, fees, commissions or other amounts when and as required by the Agreement; and (7) the fiduciary acting on Customer’s behalf has received and read the disclosure documents provided by Goldman pursuant to requirements under Section 408(b)(2) of ERISA and the regulations thereunder, which disclosures are also available at http://www.goldmansachs.com/disclaimer/GSCOERISADisclosures.html. The following events, in addition to those Events of Default specified in Section 8(a) of the Agreement, shall constitute Events of Default giving rise to all of the rights and remedies of Goldman specified in Section 8: (i) Customer is terminated; (ii) a notice of intent to terminate Customer is filed with the PBGC; (iii) a notice of the PBGC’s intent to terminate Customer is received pursuant to Section 4042 of ERISA; (iv) a reportable event within the meaning of Section 4043(c) of ERISA and the regulations thereunder has occurred (other than a reportable event for which notice by the PBGC has been waived); (v) any similar event under any applicable state or other laws has occurred; or (vi) any of the events set forth in Section 8(a)(iv) of this Agreement occurs with respect to any settlor of Customer or any plan sponsor of Customer.
Date:
Name of Customer:
By/Signature: Name: Title:
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APPENDIX VIII
ADDITIONAL TERMS FOR CUSTOMERS DOMICILED IN CANADA (To Be Completed by Canadian Domiciled Customer) This Appendix VIII contains additional terms to the Futures and Options on Futures Account Agreement (the “Agreement”) entered into between GSCo. and the customer identified below (“Customer”) for customers domiciled in Canada. All capitalized terms used but not defined in this Appendix VIII shall have the respective meanings assigned to such terms in the Agreement. In the event any provision in this Appendix VIII conflicts or is inconsistent with any provision of the Agreement, the provisions of this Appendix VIII shall control for matters or services related to this Appendix VIII. Customer represents and warrants, as of the date hereof and on the date of each transaction executed under the Agreement, that:
1. All Customers
(a) Customer is resident in one of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Québec, Nova Scotia or Newfoundland;
(b) Customer is an “accredited investor” within the meaning of National Instrument 45-106 - Prospectus and Registration Exemptions (“NI 45-106”) and, if relying on subsection (m) of the definition of that term, is not a person created or being used solely to purchase or hold securities as an accredited investor;
(c) Customer confirms that it is Customer’s wish that this Agreement, as well as any other documents relating to this Agreement, including notices, schedules and authorizations, have been and shall be drawn up in the English language only; Le client confirme que c’est le client volonté que la présente convention, de même que tous les documents s’y rattachant, y compris tout avis, annexe et autorisation, soient rédigés en anglais seulement;
2. British Columbia, Alberta and Saskatchewan
If resident in British Columbia, Alberta or Saskatchewan, Customer is a “qualified party” as defined in Alberta Securities Commission Blanket Order 91-503 Over the Counter Derivatives Transactions and Commodity Contracts and all trading of Futures Contracts or Options Contracts by the Customer occurs on exchanges located outside British Columbia, Alberta or Saskatchewan;
3. Manitoba
If resident in Manitoba and trading Futures Contracts or Options Contracts, Customer is a “hedger” as defined under the Commodity Futures Act (Manitoba), each order by Customer to buy or sell any Contracts in the Account will be for the purpose of hedging, and the Customer will cooperate in completing and filing a Form 18 with the Manitoba Securities Commission for each completed trade;
4. Ontario
If resident in Ontario and trading Futures Contracts or Options Contracts, (i) each order by Customer to buy or sell any Contracts in the Account, unless otherwise designated in writing to GSCo. in advance, will be a hedging, arbitrage, spreading or risk management transaction not subject to speculative position limit rules and speculative margin requirements under applicable exchange rules and (ii) Customer is a Hedger within the meaning of such term in the Commodity Futures Act (Ontario) and the regulations thereunder, as amended from time to time;
5. Quebec
If resident in Quebec and trading OTC Contracts, Customer is an “accredited counterparty” as defined in the Derivatives Act (Quebec);
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6. Nova Scotia
If resident in Nova Scotia, Customer is a “Canadian permitted client” as defined in National Instrument 31-103 - Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”), or as otherwise interpreted and applied by the Canadian Securities Administrators; and
7. Newfoundland
If resident in Newfoundland and trading Futures Contracts and Options Contracts, (i) each order by Customer to buy or sell any Contracts in the Account, unless otherwise designated in writing to GSCo. in advance, will be a hedging, arbitrage, spreading or risk management transaction not subject to speculative position limit rules and speculative margin requirements under applicable exchange rules and (ii) Customer is a Hedger within the meaning of such term in Section 36(1)(v) of the Securities Act (Newfoundland), as amended from time to time.
In addition, Customer acknowledges that (i) GSCo.’s principal place of business is located in New York, New York, United States of America; (ii) GSCo. is not registered as to trade the Contracts in any province or territory of Canada; (iii) all or substantially all of the assets of GSCo. are situated outside of Canada; (iv) there may be difficulty enforcing legal rights against GSCo. for these reasons; and (v) Goldman Sachs Canada Inc. serves as GSCo.’s agent for service of process in Ontario.
Date:
Name of Customer:
By/Signature: Name: Title:
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APPENDIX IX
ADDITIONAL TERMS FOR CUSTOMERS DOMICILED IN ONTARIO (To Be Completed by Ontario Domiciled Customer) This Appendix IX contains additional terms to the Futures and Options on Futures Account Agreement (the “Agreement”) entered into between GSCo. and the customer identified below (“Customer”) for customers domiciled in Ontario. All capitalized terms used but not defined in this Appendix IX shall have the respective meanings assigned to such terms in the Agreement. In the event any provision in this Appendix IX conflicts or is inconsistent with any provision of the Agreement, the provisions of this Appendix IX shall control for matters or services related to this Appendix IX.
1. In addition to the Events of Default set forth under Section 8(a) of the Agreement, the occurrence of the following event shall constitute an additional Event of Default:
Any steps to terminate or wind-up the Customer, in whole or in part, is made by the manager, trustee, administrator, unitholders, or any regulator of the Customer, as applicable.
2. Section 8(a)(iv) of the Agreement is hereby deleted in its entirety and replaced with the following:
“(iv) a case in bankruptcy is commenced or a proceeding under any insolvency or other law for the protection of creditors (including, as applicable, a plan of arrangement proceeding under the applicable corporations law) or for the appointment of a receiver, trustee or similar officer is filed by or against any Relevant Party (as defined below) or such Relevant Party makes or proposes to make any arrangement for the benefit of its creditors, or such Relevant Party or any of its property is subject to any agreement, order or judgment providing for its dissolution, liquidation or reorganization (including, as applicable, a reorganization under the plan of arrangement provisions of the applicable corporations law), or for the appointment of a receiver, trustee or similar officer of Customer or such property”. For the purposes of the foregoing, “Relevant Party” means the Customer, Advisor (if any), manager, trustee, administrator, or employer in relation to the Customer (in each case, to the extent applicable based upon the legal structure of the Customer), and in the case of a Customer that is a pension entity (other than a master trust) “Customer” refers to both the pension plan and the relevant fund in respect of this Agreement.”.
3. Section 8(a)(D) shall be amended by the addition of the words “and exercise any rights of set-off granted by Section 6” immediately after the words “any obligations of Goldman to Customer”.
Date:
Name of Customer:
Name of Trustee (if applicable):
By/Signature: Name: Title:
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APPENDIX X
ADDITIONAL TERMS FOR IRISH UNIT TRUST CUSTOMERS (To Be Completed by Irish Unit Trust Customer)
This Appendix X contains additional terms to the Futures and Options on Futures Account Agreement (the “Agreement”) entered into between GSCo. and the customer identified below (“Customer”) for Irish unit trust customers. All capitalized terms used but not defined in this Appendix X shall have the respective meanings assigned to such terms in the Agreement. In the event any provision in this Appendix X conflicts or is inconsistent with any provision of the Agreement, the provisions of this Appendix X shall control for matters or services related to this Appendix X.
1. If Customer is an Irish unit trust established pursuant to the Irish Unit Trusts Act 1990 and authorized by the Central Bank of Ireland, the following shall apply:
(a) For the purposes of the Agreement, “Customer” shall be understood to mean the Manager acting so as to bind itself in its capacity as Manager for and on behalf of the Trust or, as the case may be, so as to bind the Trustee in its capacity as trustee for and on behalf of the Trust.
(b) Without prejudice to the generality of the foregoing, the Trustee is executing the Agreement for the purposes of: (i) creating the pledge, lien, first priority security interest and right of set-off for the discharge of all Customer’s obligations to Goldman pursuant to Section 6 of the Agreement; (ii) acknowledging and agreeing to those terms that relate to the exercise by Goldman of its rights in respect the security referred to in (i) above; (iii) acknowledging and agreeing to the terms of the Agreement relating to the delivery of margin and transfer of assets of the Trust by GSCo. in the manner more particularly described in the Agreement; and (iv) acknowledging and agreeing to the terms relating to default on the part of the Customer as more particularly set out in Section 8 of the Agreement. For the avoidance of doubt, references to default of the Customer by reason of Section 8(a)(iv) shall include circumstances where a case in bankruptcy is commenced or a proceeding under any insolvency or other law for the protection of creditors or for the appointment of a receiver, trustee or similar officer is filed by or against the Trustee or the Trust or the Trustee makes or proposes to make any arrangement for the benefit of its creditors, or the Trustee or the Trust or any of its property is subject to any agreement, order or judgment providing for the Trustee’s or the Trust’s dissolution, liquidation or reorganization, or for the appointment of a receiver, trustee or similar officer of the Trustee, the Trust or such property.
(c) The Trustee is entering into this Appendix X so as to bind itself in its capacity as Trustee of the Trust and there will be no recourse whatsoever to the personal assets of the Trustee in the event of any default howsoever arising on the part of the Customer hereunder absent fraud, negligence or willful default on the part of the Trustee.
Date:
Name of Trust:
Present when the common seal of the Trustee was affixed hereto:
Name of Trustee:
By/Signature (Trustee): Name: Title:
Name of Manager:
By/Signature (Manager): Name: Title:
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APPENDIX XI
ADDITIONAL TERMS FOR CAYMAN ISLANDS SEGREGATED PORTFOLIO COMPANY CUSTOMERS (To Be Completed by Cayman Islands Segregated Portfolio Company Customer)
This Appendix XI contains additional terms to the Futures and Options on Futures Account Agreement (the “Agreement”) entered into between GSCo. and the customer identified below (“Customer”) for Cayman Islands Segregated Portfolio Company customers. All capitalized terms used but not defined in this Appendix XI shall have the respective meanings assigned to such terms in the Agreement. In the event any provision in this Appendix XI conflicts or is inconsistent with any provision of the Agreement, the provisions of this Appendix XI shall control for matters or services related to this Appendix XI.
1. Additional Representations and Warranties. In addition to the representations and warranties under Section 7 of the Agreement, Customer represents and warrants, as of the date hereof and on the date of each transaction executed under the Agreement, that: (i) Customer is a company incorporated pursuant to the Companies Law of the Cayman Islands (as amended, revised or restated from time to time, the “Companies Law”) and is registered as an exempted segregated portfolio company pursuant to the Companies Law and is in good standing under the laws of the Cayman Islands; (ii) the Segregated Portfolio (as indicated in Name of Customer listed on the signature page of the Agreement) is a segregated portfolio of the Customer and is maintained as a segregated portfolio in accordance with the Companies Law; (iii) if regulated in accordance with the Mutual Funds Law of the Cayman Islands (as may be amended, supplemented, replaced or revised from time to time) it is and will remain in all material respects in compliance with the Mutual Funds Law of the Cayman Islands (as may be amended, supplemented, replaced or revised from time to time); (iv) Customer shall ensure that it remains in good standing as an exempted segregated portfolio company pursuant to the Companies Law and shall maintain the Segregated Portfolio as a segregated portfolio in accordance with the Companies Law; and (v) Customer shall ensure that all assets related to the Segregated Portfolio are segregated, separate and separately identifiable from the assets of any other segregated portfolio of the Customer, and that assets and liabilities attributable to any segregated portfolio of the Customer shall not be transferred between portfolios.
2. Additional Events of Default. In addition to the Events of Default set forth under Section 8(a) of the Agreement, the occurrence of any of the following events shall constitute an additional Event of Default: (i) any action is taken for the receivership of the Segregated Portfolio or any assets allocated to the Segregated Portfolio of the Customer; (ii) either of the Segregated Portfolio or the Customer are wound up or otherwise terminated, or any action is taken by the Customer or any other party in contemplation of its winding-up or termination; (iii) the assets of the Segregated Portfolio are insufficient to meet the obligations or liabilities of the Segregated Portfolio; or (iv) where the Customer is a mutual fund registered with the Cayman Islands Monetary Authority, a controller, liquidator or similar person is appointed by the Cayman Islands Monetary Authority, or such authority takes action in contemplation of such appointment, to terminate or assume control of the affairs of the Customer or the Segregated Portfolio.
Date:
Name of Customer:
By/Signature: Name: Title:
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APPENDIX XII
ADDITIONAL TERMS FOR CAYMAN ISLANDS TRUST AND UNIT TRUST CUSTOMERS (To Be Completed by Cayman Islands Trust and Unit Trust (each, a “Trust”) Customer)
This Appendix XII contains additional terms to the Futures and Options on Futures Account Agreement (the “Agreement”) entered into between GSCo. and the customer identified below (“Customer”) for Cayman Island Trust customers. All capitalized terms used but not defined in this Appendix XII shall have the respective meanings assigned to such terms in the Agreement. In the event any provision in this Appendix XII conflicts or is inconsistent with any provision of the Agreement, the provisions of this Appendix XII shall control for matters or services related to this Appendix XII.
1. Additional Representations and Warranties. In addition to the representations and warranties set forth in Section 7 of the Agreement, the Trustee represents and warrants, as of the date hereof and on the date of each transaction executed under the Agreement, that: (i) Trustee is the sole trustee of the Trust, which is a Trust formed under the laws of the Cayman Islands and will notify Goldman in writing prior to any change in trustee of the Trust; (ii) it is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation and, if relevant under such laws, in good standing; (iii) if Trustee is duly registered as a foreign company under the Companies Law of the Cayman Islands (as may be amended, supplemented, replaced or revised from time to time), it is in good standing with the Registrar of Companies in the Cayman Islands; (iv) it is duly licensed as a trust company under and in accordance with the Banks and Trust Companies Law of the Cayman Islands (as may be amended, supplemented, replaced or revised from time to time) and is in good standing with the Registrar of Companies in the Cayman Islands and the Cayman Islands Monetary Authority; and (v) if the Trust is regulated in accordance with the Mutual Funds Law of the Cayman Islands (as the same may be amended, supplemented, replaced or revised from time to time) it is and will remain in all material respects in compliance with the Mutual Funds Law of the Cayman Islands (as may be amended, supplemented, replaced or revised from time to time).
2. Additional Events of Default. In addition to the events set forth in Section 8(a) of the Agreement, the occurrence of any of the following events shall constitute an additional Event of Default: (i) if Trustee (A) is dissolved or shall go into liquidation or if a receiver is appointed of the whole or of any substantial part of the assets or undertaking of the Trust or if the Trustee convenes a meeting of the creditors of the Trust or makes or proposes to make any arrangements or compositions with or any assignment for the benefit of the Trust’s creditors; (B) is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due; or (C) institutes or has instituted against it by any person, including any creditor, member, regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organization, a procedure seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law, or a petition is presented for its winding-up or liquidation by it or any other person; (ii) the Trust is terminated, or any action is taken by the Trustee or any other party in contemplation of its termination; (iii) where the Trust is a regulated trust or unit trust registered with the Cayman Islands Monetary Authority, a liquidator or similar person is appointed by the Cayman Islands Monetary Authority, or such authority takes action in contemplation of such appointment, to terminate or assume control of the affairs of the Trust; or (iv) if (A) the Trustee ceases to be the trustee of the Trust for any reason or the Trustee resigns or otherwise seeks replacement or removal from its position as trustee of the Trust; or Customer fails to notify Goldman in writing immediately upon becoming aware that any such event has occurred or is reasonably likely to occur or has been proposed; and (B) in the case of such a termination, a successor trustee, reasonably satisfactory to Goldman, has not been concurrently appointed on behalf of the Trust and, provided further, such successor trustee has not executed documentation reasonably satisfactory to Goldman evidencing its agreement to be bound by the provisions of this Agreement applicable to it.
[Signature page follows]
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Date:
Name of Trustee:
By/Signature: Name: Title:
Date:
Name of Customer:
By/Signature: Name: Title:
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APPENDIX XIII
ADDITIONAL TERMS FOR THE COMMONWEALTH OF THE BAHAMAS PARTNERSHIP CUSTOMERS (To Be Completed by the Commonwealth of The Bahamas Partnership Customer)
This Appendix XIII contains additional terms to the Futures and Options on Futures Account Agreement (the “Agreement”) entered into between GSCo. and the customer identified below (“Customer”) for the Commonwealth of Bahamas partnership customers. All capitalized terms used but not defined in this Appendix XIII shall have the respective meanings assigned to such terms in the Agreement. In the event any provision in this Appendix XIII conflicts or is inconsistent with any provision of the Agreement, the provisions of this Appendix XIII shall control for matters or services related to this Appendix XIII.
1. Additional Representations and Warranties. In addition to the representations and warranties set forth in Section 7 of the Agreement, Customer represents and warrants, as of the date hereof and on the date of each transaction executed under the Agreement, that each General Partner (as defined below) of Customer is identified below and the legal structure and place of organization of each such General Partner is as specified below. “General Partner” of Customer shall mean a general partner of Customer or any general partner which directly or indirectly has an interest in such general partner as of the date of this Agreement.
2. Additional Events of Default. In addition to the events set forth in Section 8(a) of the Agreement, the occurrence of any of the following events shall constitute an additional Event of Default: (i) a case in bankruptcy is commenced or a proceeding under any insolvency or other law for the protection of creditors or for the appointment of a receiver, trustee or similar officer is filed by or against a General Partner of Customer or a General Partner of Customer makes or proposes to make any arrangement for the benefit of its creditors, or a General Partner of Customer or any of its property is subject to any agreement, order or judgment providing for such General Partner’s dissolution, liquidation or reorganization, or for the appointment of a receiver, trustee or similar officer of the General Partner or such property; or (ii) a Change of General Partner Event (as defined below) has occurred. “Change of General Partner Event” means (a) one or more General Partners of Customer is no longer a general partner at any time, (b) any General Partner resigns or otherwise seeks replacement or removal from its position with Customer as its general partner, (c) a general partner is added, or (d) Customer fails to notify GSCo. in writing promptly upon becoming aware that any of such events may or is reasonably likely to occur, it being understood that a Change of General Partner Event shall not be deemed to occur if it is determined by GSCo., in its discretion, that any such event will not have an adverse effect upon the enforceability of the netting or collateral provisions of, or relating to, this Agreement.
Name of General Partner Legal Structure of General Partner Place of Organization of General Partner
Name of General Partner Legal Structure of General Partner Place of Organization of General Partner
Name of General Partner Legal Structure of General Partner Place of Organization of General Partner Include additional pages if necessary.
Date:
Name of Customer:
By/Signature: Name: Title:
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APPENDIX XIV
ADDITIONAL TERMS FOR LUXEMBOURG UMBRELLA UCI CUSTOMERS (To Be Completed by Luxembourg Umbrella UCI Customer)
This Appendix XIV contains additional terms to the Futures and Options on Futures Account Agreement (the “Agreement”) entered into between GSCo. and the customer identified below (“Customer”) for Luxembourg umbrella UCI customers. All capitalized terms used but not defined in this Appendix XIV shall have the respective meanings assigned to such terms in the Agreement. In the event any provision in this Appendix XIV conflicts or is inconsistent with any provision of the Agreement, the provisions of this Appendix XIV shall control for matters or services related to this Appendix XIV.
1. Scope of Agreement.
(a) References in the Agreement to the Customer shall be to the Luxembourg fund (the “Fund”) acting for the account of the sub-fund(s) listed therein, severally and not jointly (each a “Sub- Fund”). The Fund is a Luxembourg undertaking for collective investment (UCI) with multiple sub-funds established as a SICAV, SICAF, or FCP subject to and authorized under the Luxembourg act of 17 December 2010 relating to UCIs, as amended (the “2010 Act”) or 13 February 2007 relating to specialized investment funds, as amended (the “2007 Act”), as the case may be, established as an umbrella fund with segregated liability between Sub-Funds.
(b) Each obligation or liability of the Fund, or undertaking by the Fund, to Goldman in each case in respect of a Sub-Fund, severally and not jointly, under or in respect of the Agreement or any Contract (or such other transactions pursuant to the Agreement) entered into, including by the Advisor on behalf of such Sub-Fund, will be satisfied only out of, and Goldman’s recourse to the Fund in respect of its claim shall be limited to, the assets of such Sub-Fund, even if such assets are insufficient to meet Goldman’s claim, and any claim in respect of any such shortfall shall be extinguished to the extent not met out of the assets of the relevant Sub-Fund.
(c) Each Contract entered into, including by the Advisor, as agent on behalf of a Sub-Fund of the Fund, hereunder shall be entered into for the account of such Sub-Fund on the following basis: (i) each Contract entered into in relation to a Sub-Fund shall be deemed to be a Contract entered into between GSCo. and that Sub-Fund, as if such Sub-Fund were a separate legal entity; and (ii) all of the provisions of the Agreement (including all netting (including close-out netting) and set-off rights) shall apply separately as between GSCo. and each Sub-Fund as if each such Sub-Fund were a party to a separate agreement with GSCo. in all respects identical to the Agreement.
(d) For the avoidance of doubt, an Event of Default in respect of a Sub-Fund shall not be an Event of Default in respect of any other Sub-Fund, and Clearing Member’s rights shall be construed accordingly.
2. Additional Customer Representations. The Customer agrees and covenants with, and represents and warrants to, GSCo. that:
(a) The Fund is a SICAF, SICAV, or FCP having an umbrella structure and duly organized under Luxembourg law and is conducting its business in compliance with the 2010 Act or the 2007 Act, as applicable, and any other statutory or regulatory provisions that are applicable to it.
(b) It will strictly comply with all limits of any nature (in particular so far as applicable investment restrictions and the use of derivative techniques and instruments) applicable to it pursuant to Applicable Laws, in particular pursuant to the 2010 Act or the 2007 Act, as applicable and its Constitutive Documents.
(c) Customer has granted the Advisor full discretionary power and authority to make investment decisions for, in the name of, and on behalf of, Customer, including without limitation the power and authority to enter into Contracts as the agent for Customer.
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3. Additional Events of Default. Customer acknowledges and agrees that the definition of “Event of Default” under the Agreement will include the following events:
(a) The CSSF withdraws the Fund’s approval, or other disciplinary actions against the Fund are taken by the CSSF or, if applicable, the relevant regulatory authority of the country of the Management Company withdraws the Management Company’s approval as management company under Directive 2009/65/EC, or other disciplinary actions against the Management Company are taken by the CSSF or the regulatory authority of the country of incorporation/supervision of the Management Company.
(b) The Sub-Fund is terminated, dissolved or liquidated for any reason (which, for the avoidance of doubt, shall include any suspension of payment proceedings under the 2010 Act or the 2007 Act).
(c) The merger of Customer (including, for the avoidance of doubt, the merger of the relevant Sub- Fund) by the transfer of all or part of its assets into another sub-fund or another collective investment scheme or a sub-fund thereof or its division into one or more collective investment schemes or sub-funds without the prior consent of GSCo.
(d) Any of the Constitutive Documents is amended or modified in a manner which, in the reasonable judgment of the GSCo, may have a material and adverse effect on Customer under this Agreement or any Contract hereunder. For the avoidance of doubt, any amendment to the Constitutive Documents with a view to derogate from the principle of segregation of the assets and liabilities between the Sub-Funds would constitute a material change for the purpose of this provision.
(e) Customer discharges the Advisor, unless the Advisor is replaced by another entity acceptable to GSCo.
(f) Any representation or warranty made or deemed made by Customer under Section 2 of this Appendix XIV proves false or misleading in any material respect when made or deemed made, or Customer fails to comply with or perform any agreement or obligation to be complied with or performed under the Agreement.
4. Definitions. For purposes of this Appendix XIV:
(a) “Advisor” means Customer’s agent as defined in the Agreement or, in the case of an FCP, Customer’s Management Company.
(b) “Applicable Laws” means all statutory (including any code, order, regulation, instrument or subordinate legislation) and other law whether in Luxembourg or elsewhere and all applicable European law and all applicable statements of principle rules, principles, guidelines, regulations or requirements of or issued by any relevant regulatory or supervisory authority or professional body whether in Luxembourg, or elsewhere (including by the European Securities and Markets Authority (to the extent directly applicable to it), the CSSF applicable to the Fund and any subsequent amendment, modification or re-enactment thereof.
(c) “Constitutive Documents” means the Fund’s current prospectus or placement memorandum (together with any supplement relating to the Sub-Fund if applicable) and the management regulations or articles of incorporation of the Fund, as the case may be (as amended, restated, supplemented and/or updated from time to time).
(d) “CSSF” means the Luxembourg regulatory authority, the Commission de Surveillance du Secteur Financier.
(e) “FCP” means fonds commun de placement, an unincorporated joint ownership of assets.
(f) “Management Company” means the management company acting as statutory representative of the FCP.
(g) “SICAF” means société d’investissement à capital fixe, an investment company with fixed capital. - 35 - Book I 2.2016 + FAE
(h) “SICAV” means société d’investissement à capital variable, an investment company with variable capital.
Date:
Name of Customer:
By/Signature: Name: Title:
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APPENDIX XV
ADDITIONAL TERMS FOR ANGUILLA PARTNERSHIP CUSTOMERS (To Be Completed by Anguilla Partnership Customer)
This Appendix XV contains additional terms to the Futures and Options on Futures Account Agreement (the “Agreement”) entered into between GSCo. and the customer identified below (“Customer”) for Anguilla partnership customers. All capitalized terms used but not defined in this Appendix XV shall have the respective meanings assigned to such terms in the Agreement. In the event any provision in this Appendix XV conflicts or is inconsistent with any provision of the Agreement, the provisions of this Appendix XV shall control for matters or services related to this Appendix XV.
1. Additional Representations and Warranties. In addition to the representations and warranties set forth in Section 7 of the Agreement, Customer represents and warrants, as of the date hereof and on the date of each transaction executed under the Agreement, that each General Partner (as defined below) of Customer is identified below and the legal structure and place of organization of each such General Partner is as specified below. “General Partner” of Customer shall mean a general partner of Customer or any general partner which directly or indirectly has an interest in such general partner as of the date of this Agreement.
2. Additional Events of Default. In addition to the events set forth in Section 8(a) of the Agreement, the occurrence of any of the following events shall constitute an additional Event of Default: (i) a case in bankruptcy is commenced or a proceeding under any insolvency or other law for the protection of creditors or for the appointment of a receiver, trustee or similar officer is filed by or against a General Partner of Customer or a General Partner of Customer makes or proposes to make any arrangement for the benefit of its creditors, or a General Partner of Customer or any of its property is subject to any agreement, order or judgment providing for such General Partner’s dissolution, liquidation or reorganization, or for the appointment of a receiver, trustee or similar officer of the General Partner or such property; or (ii) a Change of General Partner Event (as defined below) has occurred. “Change of General Partner Event” means (a) one or more General Partners of Customer is no longer a general partner at any time, (b) any General Partner resigns or otherwise seeks replacement or removal from its position with Customer as its general partner, (c) a general partner is added, or (d) Customer fails to notify GSCo. in writing promptly upon becoming aware that any of such events may or is reasonably likely to occur, it being understood that a Change of General Partner Event shall not be deemed to occur if it is determined by GSCo., in its discretion, that any such event will not have an adverse effect upon the enforceability of the netting or collateral provisions of, or relating to, this Agreement.
Name of General Partner Legal Structure of General Partner Place of Organization of General Partner
Name of General Partner Legal Structure of General Partner Place of Organization of General Partner
Name of General Partner Legal Structure of General Partner Place of Organization of General Partner Include additional pages if necessary.
Date:
Name of Customer:
By/Signature: Name: Title:
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APPENDIX XVI
ADDITIONAL TERMS FOR BERMUDA PARTNERSHIP CUSTOMERS (To Be Completed by Bermuda Partnership Customer4)
This Appendix XVI contains additional terms to the Futures and Options on Futures Account Agreement (the “Agreement”) entered into between GSCo. and the customer identified below (“Customer”) for Bermuda partnership customers. All capitalized terms used but not defined in this Appendix XVI shall have the respective meanings assigned to such terms in the Agreement. In the event any provision in this Appendix XVI conflicts or is inconsistent with any provision of the Agreement, the provisions of this Appendix XVI shall control for matters or services related to this Appendix XVI.
1. Additional Representations and Warranties. In addition to the representations and warranties set forth in Section 7 of the Agreement, Customer represents and warrants, as of the date hereof and on the date of each transaction executed under the Agreement, that each General Partner (as defined below) of Customer is identified below and the legal structure and place of organization of each such General Partner is as specified below. “General Partner” of Customer shall mean a general partner of Customer or any general partner which directly or indirectly has an interest in such general partner as of the date of this Agreement.
2. Additional Events of Default. In addition to the events set forth in Section 8(a) of the Agreement, the occurrence of any of the following events shall constitute an additional Event of Default: (i) a case in bankruptcy is commenced or a proceeding under any insolvency or other law for the protection of creditors or for the appointment of a receiver, trustee or similar officer is filed by or against a General Partner of Customer or a General Partner of Customer makes or proposes to make any arrangement for the benefit of its creditors, or a General Partner of Customer or any of its property is subject to any agreement, order or judgment providing for such General Partner’s dissolution, liquidation or reorganization, or for the appointment of a receiver, trustee or similar officer of the General Partner or such property; or (ii) a Change of General Partner Event (as defined below) has occurred. “Change of General Partner Event” means (a) one or more General Partners of Customer is no longer a general partner at any time, (b) any General Partner resigns or otherwise seeks replacement or removal from its position with Customer as its general partner, (c) a general partner is added, or (d) Customer fails to notify GSCo. in writing promptly upon becoming aware that any of such events may or is reasonably likely to occur, it being understood that a Change of General Partner Event shall not be deemed to occur if it is determined by GSCo., in its discretion, that any such event will not have an adverse effect upon the enforceability of the netting or collateral provisions of, or relating to, this Agreement.
Name of General Partner Legal Structure of General Partner Place of Organization of General Partner
Name of General Partner Legal Structure of General Partner Place of Organization of General Partner
Name of General Partner Legal Structure of General Partner Place of Organization of General Partner Include additional pages if necessary.
Date:
Name of Customer:
By/Signature: Name: Title:
4 This appendix does not need to be completed by Bermuda Partnership customers which have elected to have separate legal personality upon formation. If separate legal personality has been elected, please initial here: ____
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APPENDIX XVII
ADDITIONAL TERMS FOR UNITED KINGDOM PENSION SCHEME TRUSTEE CUSTOMERS (To Be Completed by Trustee on behalf of United Kingdom Pension Scheme Trustee Customer)
This Appendix XVII contains additional terms to the Futures and Options on Futures Account Agreement (the “Agreement”) entered into between GSCo. and the customer identified below (“Customer”) for United Kingdom pension scheme trustee customers. All capitalized terms used but not defined in this Appendix XVII shall have the respective meanings assigned to such terms in the Agreement. In the event any provision in this Appendix XVII conflicts or is inconsistent with any provision of the Agreement, the provisions of this Appendix XVII shall control for matters or services related to this Appendix XVII.
1. Additional Agreement. In addition to the terms set forth in the Agreement, Customer agrees that it will immediately inform Goldman if it becomes aware that: (a) an insolvency event (as defined for the purposes of Part 2 of the Pensions Act 2004) has occurred in relation to any employer participating in the pension scheme identified below (the “Pension Scheme”) and whether that insolvency event has caused an assessment period to begin in relation to the Fund for the purposes of Part 2 of the Pensions Act; or (b) a transfer notice has been given by the Board of the Pension Protection Fund (“PPF”) to the Customer for the purposes of Part 2 of the Pensions Act 2004.
2. Additional Events of Default. In addition to the events set forth in Section 8(a) of the Agreement, the occurrence of any of the following events shall constitute an additional Event of Default: (i) the Pension Scheme is terminated or dissolved (other than pursuant to a consolidation, amalgamation or merger); (ii) a winding up of the Pension Scheme is commenced other than in circumstances where the winding up of the Pension Scheme is deferred pursuant to Section 38 of the Pensions Act 1995 or a power in the governing documents of the Pension Scheme and the Pension Scheme continues to be administered by Customer as a frozen scheme; (iii) in the event a Pension Protection Fund assessment period (within the meaning of Section 132 of the Pensions Act 2004) (an “Assessment Period”) has commenced and: (a) the PPF approves under Section 144 of the Pensions Act 2004 a valuation under Section 143 of that Act which verifies that the Pension Scheme's protected liabilities (within the meaning of Section 131 of that Act) exceed its assets; (b) the PPF determines under Section 152(2) of the Pensions Act 2004 that it must accept responsibility for the pension scheme; or (c) the PPF approves under Section 158(3) of the Pensions Act 2004 an actuarial valuation which verifies that the Pension Scheme's protected liabilities exceed its assets, provided that, in each case, there will not be an Event of Default if prior to the date on which the Event of Default would otherwise occur the PPF has executed and delivered to Goldman an irrevocable deed in a form satisfactory to Goldman that it will not, following the issue of a transfer notice pursuant to Section 160 of the Pensions Act 2004, use its powers under Section 161 of that Act (or any regulations made thereunder) to disapply or amend any terms or conditions of this Agreement or terminate this Agreement (unless such disapplication, amendment or termination is permitted under the express terms of this Agreement); (iv) the PPF issues a direction under Section 134 of the Pensions Act 2004 during an Assessment Period which is reasonably likely to have a material adverse consequence on Customer's ability to make payments or meet obligations (including future payments or obligations) under this Agreement; (v) following an Assessment Period, the PPF determines that the Pension Scheme is not an eligible scheme for the purposes of the Part 2 of the Pensions Act 2004 unless the Pension Scheme is so determined not to be an eligible scheme because it has sufficient assets to fully secure benefits on wind-up; (vi) an action for the administration of the Pension Scheme is initiated pursuant to Rule 64.2 of the Civil Procedure Rules or any replacement of that Rule and, as a result of such action, Customer is unable to perform any of its material obligations under this Agreement; (vii) the assets of the Pension Scheme are not sufficient to satisfy Customer's right to discharge any obligation undertaken by or liability of Customer under this Agreement; or (viii) there is a change in any applicable law or regulations or in the Trust Deed (as defined below) or other governing documents of the Pension Scheme which would give the beneficiaries of the Pension Scheme priority over Goldman in the event of a full or partial winding up of the Pension Scheme. “Trust Deed” means the trust deed from time to time (whether in interim, initial or otherwise final form) governing the Pension Scheme and any amending deeds, resolutions or other documents which operate to amend the trust deed.
Date:
Name of Pension Scheme:
Name of Customer:
By/Signature: Name: Title: - 39 - Book I 2.2016 + FAE